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1
Legal Aid Queensland
LEGAL AID QUEENSLAND BILL 1997
EXPLANATORY NOTES
GENERAL OUTLINE
Objectives of the Legislation
The main objects of this Bill are:--
(a) to provide for giving legal assistance to financially disadvantaged
persons in the most effective, efficient and economical way; and
(b) to pursue innovative commercial arrangements, including legal
assistance arrangements, for giving legal assistance at a
reasonable cost to the community and on an equitable basis
throughout the State.
These objects are to be achieved mainly by establishing Legal Aid
Queensland.
Reasons for the objectives and how they will be achieved
In view of the fact that the Commonwealth Government has given notice
of the termination of the Commonwealth/State Legal Aid Agreement on 30
June 1997, and the development of innovative management practices for the
delivery of government services between clients and service providers, it is
appropriate to reconsider the current framework for the provision of legal
aid in this State. Consequently, the main objects of this Bill will be
achieved by the establishment of a new legal aid body which will be tasked
with the main function of ensuring that legal assistance is given to persons
in the most effective, economic, commercial and efficient way.
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Legal Aid Queensland
Administrative cost to Government of implementation
Not unlike the current funding mechanism for the provision of legal
services throughout the State, the Government will continue to incur
significant administrative costs in the provision of legal assistance
throughout the State. However, it is envisaged that such administrative
costs will be more effectively controlled and monitored by the Government
entering into an arrangement with the new legal aid body which will clarify
the Government's role as a purchaser and the legal aid body as a provider of
legal services throughout the State.
Fundamental legislative principles
Section 4(4) of the Legislative Standards Act 1992("LSA") sets out
criteria for determining whether a Bill has sufficient regard to the institution
of Parliament and that one of these criteria is that the Bill only authorises the
amendment of an Act only by another Act.
Clause 46 of the Bill enables Legal Aid Queensland to enter into legal
assistance arrangements with the Commonwealth, the State or other entities
and that such arrangements may provide for the amounts to be made
available for, and the priorities to be observed in providing, legal assistance.
Clause 11(2) of the Bill enables a regulation or a publication of criteria to be
made or published to give effect to conditions of a legal assistance
arrangement. It may be argued that the content of these legal assistance
arrangements may be seen to be overriding provisions in the Bill. This is
neither the case nor the intention. The purpose of clauses 46 and 11(2) of
the Bill is to provide flexibility in the making of these legal assistance
arrangements from time to time and the fact that the Commonwealth and
Queensland governments will be providing the funds and setting the
priorities and policies for the provision, and direction, of legal assistance.
Section 4(3)(i) of LSA provides that one of the fundamental legislative
principles is whether legislation provides for the compulsory acquisition of
property only with fair compensation.
Clauses 94 and 95 provide that the former entity's assets, rights and
liabilities vest in Legal Aid Queensland. It is recognised that some of these
assets may be Commonwealth property and so clause 96 of the Bill enables
a regulation to be made to revest an asset or liability in a stated entity [such
as the Commonwealth government].
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Legal Aid Queensland
It may be argued that this clause 96 is an inappropriate delegation of
legislative power and therefore in breach of Section 4(4) of the LSA. In
view of the current state of negotiations between the Commonwealth and
Queensland governments on future arrangements for the provision of legal
aid services in this State after 1 July 1997 and the fact that it is not possible
to adequately determine the exact nature and extent of those assets and
liabilities, it is considered that the use of clause 96 provides flexibility and is
an appropriate delegation of power.
Consultation
The content of this Bill has been discussed with all current members of
the Legal Aid Commission Queensland, the Chief Justice, the Chief Judge
of the District Courts, the President of the Court of Appeal, the Senior
Judge Administrator of the Supreme Court of Queensland, the Queensland
Law Society Inc, the Queensland Bar Association, the Commonwealth
Attorney-General's Department, and the State Public Services Federation
Queensland--Union of Employees.
The Department of Justice has also consulted relevant government
departments such as Queensland Treasury.
NOTES ON PROVISIONS
PART 1--PRELIMINARY
Clause 1 sets out the short title of the Act.
Clause 2 is the commencement provision which provides that the Act
commences on 1 July 1997 except for Clause 90 which commences on
assent.
Clause 3 outlines the main objects of the Act.
Clause 4 provides for a dictionary in the Schedule to the Act which
defines particular words.
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Legal Aid Queensland
Clause 5 defines the fundamental term, "legal assistance" and how a
legal service may be given.
Clause 6 defines the term "legally assisted person".
Clause 7 defines the fundamental term "legal assistance arrangement"
which is the basis for the use of innovative management practices called
"purchaser-provider arrangements". A purchaser-provider arrangement is
one in which:
(1) the purchaser is the agent who decides what will be produced; and
(2) the provider is the agent who delivers the agreed outputs or
outcomes.
PART 2--LEGAL ASSISTANCE
Division 1 --Preliminary
Clause 8 sets out the types of legal services to which Part 2 applies.
Division 2--Giving legal assistance
Clause 9 enables a person to apply for legal assistance
Clause 10 states that an application for legal assistance be made in the
approved form.
Clause 11 provides that legal assistance may be given to a person only if
the person satisfies certain criteria.
Clause 12 enables Legal Aid Queensland to consider relevant matters
before deciding whether to grant legal assistance to the person.
Clause 13 provides that Legal Aid Queensland have regard to anything
that would be a relevant matter if the application were made by persons who
are the corporation's directors and members.
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Legal Aid Queensland
Clause 14 sets out the conditions for providing legal assistance if the
applicant does not ordinarily reside in the State.
Clause 15 requires Legal Aid Queensland to consider various matters if
the request for legal assistance relates to a court proceeding.
Clause 16 enables Legal Aid Queensland to provide assistance for a
matter even though the person's interests are adverse to the interest of
Government.
Clause 17 enables Legal Aid Queensland to approve or refuse an
application and sets out the manner of how Legal Aid Queensland may give
the legal assistance.
Clause 18 sets out some of the conditions that may be imposed by Legal
Aid Queensland providing legal assistance.
Clause 19 enables Legal Aid Queensland to enforce those conditions.
Clause 20 provides that if Legal Aid Queensland refuses an application,
it must give the applicant written notice of its decision.
Division 3 --Reviews and court recommendations
Clause 21 enables the Legal Aid Board to establish a review mechanism
if it considers appropriate to review decisions made by Legal Aid
Queensland about legal assistance.
Clause 22 enables a court to recommend legal assistance to a person in
specified criminal proceedings if it considers it appropriate to do so.
Division 4 --Alternative dispute resolution
Clause 23 sets out relevant definitions for the provisions in this Part
dealing with alternative dispute resolution.
Clause 24 enables Legal Aid Queensland to require the applicant or
legally assisted person to participate in alternative dispute resolution
processes.
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Clause 25 provides that any evidence from a conferencing session is
admissible in court proceedings only if all parties to the conferencing
session agree.
Clause 26 enables a conferencing chair to disclose information obtained
at a conferencing session under certain circumstances.
Clause 27 provides that a conferencing chairperson has the same
protection and immunity as a judge, and sets out the protection and
immunity attaching to conference parties and witnesses.
Division 5 --General duties of lawyers and Legal Aid agents
Clause 28 requires the legally assisted person's lawyer to give notice to
the other parties to a proceeding that the person is legally assisted.
Clause 29 empowers Legal Aid Queensland to request Legal Aid
Queensland's agent to give relevant information or documents about the
provision of legal assistance in a particular matter.
Division 6 --Costs of proceedings
Clause 30 is concerned with a legally assisted person's entitlement to
costs in a proceeding.
Clause 31 provides that Legal Aid Queensland is subrogated to the rights
and remedies of the legally assisted person in a court proceeding, where a
court makes an order for costs in favour of a legally assisted person.
Clause 32 sets out the mechanism enabling Legal Aid Queensland to pay
costs awarded against a legally assisted person.
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Division 7 --Other provisions about Legal Aid's recovery of its costs and
expenses
Clause 33 sets out how a Legal Aid agent must deal with an amount
actually received by a legally assisted person where that person is required
to pay a sum to Legal Aid.
Clause 34 deals with the situation where the Legal Aid Queensland agent
comes into possession or control of particular property.
Clause 35 requires the Legal Aid agent to deal with an amount given to
the agent by the legally assisted person, as directed by Legal Aid
Queensland.
Clause 36 enables Legal Aid Queensland to seek repayment of costs if
the legally assisted person recovers property.
Clause 37 enables Legal Aid Queensland to direct that the legally assisted
person take action to recover particular property, or assign their right to
recover property to Legal Aid.
Clause 38 authorises Legal Aid Queensland to charge a legally assisted
person interest on an unpaid amount payable by that person to Legal Aid
Queensland.
Clause 39 enables Legal Aid Queensland to recover unpaid amounts by
way of debt recovery in a court or creating a charge over the property
belonging to the legally assisted person.
Division 8 --Legal Aid agents' fees
Clause 40 provides for the mechanism for deciding how much is
payable to a Legal Aid agent. Clause 40(4)(c) enables Legal Aid to
authorise legal aid agents to act on a speculative basis, subject to conditions
imposed by Legal Aid.
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Legal Aid Queensland
PART 3--LEGAL AID QUEENSLAND
Division 1--Establishment
Clause 41 provides for the establishment of Legal Aid Queensland.
Clause 42 sets out the legal characteristics of Legal Aid Queensland such
as the fact that it does not represent the State.
Division 2--Functions and powers
Clause 43 outlines the main functions of Legal Aid Queensland.
Clause 44 provides for other functions for Legal Aid Queensland.
Clause 45 sets out the general powers of Legal Aid Queensland such as
the ability to acquire, hold or dispose of real and personal property and to
establish a superannuation scheme for its employees.
Clause 46 is a pivotal provision in the Act in that it enables Legal Aid
Queensland to enter into innovative management practices. This clause
enables Legal Aid Queensland to enter into legal assistance arrangements
[which are defined in clause 7]. The matters to be covered in these legal
assistance arrangements may provide for the amounts to be made available
by the Commonwealth, the State or another entity for legal assistance and
the priorities to be observed in providing that legal assistance. Moreover,
this clause enables Legal Aid Queensland to enter into agreements with
private lawyers, community legal centres, or other entities (such as the
Public Trustee) to provide legal services as its agent throughout this State.
Clause 47 sets out the situations in which Legal Aid Queensland may
appear on its own behalf and assist the court.
PART 4--LEGAL AID BOARD
Division 1--Establishment, composition, etc
Clause 48 requires that there be established a Legal Aid Board of Legal
Aid Queensland.
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Clause 49 provides for the composition of that Board and the
qualifications of its members.
Clause 50 enables the Governor-in-Council to appoint persons under
various conditions.
Clause 51 provides for the term of appointment of a member of the
Legal Aid Board and the situations which result in a member's office
becoming vacant.
Clause 52 sets out the functions of the Board.
Clause 53 enables the Minister to request the Board to give a report on
any issue relevant to its functions except the Minister can not ask the Board
to give a report about legal assistance for a particular person.
Clause 54 sets out the powers of the Board such as deciding Legal Aid
Queensland's priorities and strategies.
Clause 55 enables the Board to delegate its powers under the Act to the
Chief Executive Officer and that such powers may be subdelegated to other
appropriately qualified persons.
Division 2--Procedure
Clause 56 sets out the time and place of meetings of the Legal Aid
Board.
Clause 57 provides that three Board members constitute a quorum of the
Board.
Clause 58 outlines the level of voting to enable the Board to make a
decision.
Clause 59 enables the Board to make decisions without the need to hold
a Board meeting.
Clause 60 requires the Legal Aid Board to keep minutes.
Clause 61 enables the Legal Aid Board to decide its own procedures.
Clause 62 sets out the procedure for conflicts of interest where a Board
member has a direct or indirect pecuniary interest in a matter being
considered by the Board.
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Legal Aid Queensland
Division 3--Attorney-General's directions
Clause 63 authorises the Attorney-General to give written directions to
the Legal Aid Board about the carrying out of its functions or exercising its
powers and its policies, priorities or guidelines. It also enables the
Commonwealth Attorney-General to give the Attorney-General a written
request for a direction (relating to legal assistance given under a legal
assistance arrangement with the Commonwealth) which the
Attorney-General must give to the Legal Aid Board. Such written
directions must be tabled in the Legislative Assembly within ten sitting days
after those written directions are given to the Legal Aid Board.
PART 5--OTHER PROVISIONS ABOUT LEGAL AID
QUEENSLAND
Division 1--Chief executive officer and employees
Clause 64 provides for the appointment of a Chief Executive Officer by
the Governor-in-Council on the Legal Aid Board's recommendation.
Clause 65 sets out the qualifications of the Chief Executive Officer.
Clause 66 sets out the Chief Executive Officer's term of appointment.
Clause 67 sets out the Chief Executive Officer's responsibilities.
Clause 68 provides that anything done in the name of, or for, Legal Aid
Queensland by its Chief Executive Officer is taken to be done by Legal Aid
Queensland.
Clause 69 allows the Chief Executive Officer to delegate his or her
powers to an appropriately qualified person.
Clause 70 enables Legal Aid Queensland to engage employees under
various terms of employment to perform its functions.
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Legal Aid Queensland
Division 2--Legal practice
Clause 71 provides that a Legal Aid lawyer may practise as a lawyer, or
engage in paid employment, other than for Legal Aid Queensland, only
with the Board's written approval.
Clause 72 states that certain provisions of the Legal Practitioners Act
1995 and the Queensland Law Society Act 1952 do not apply to Legal Aid
lawyers.
Clause 73 gives Legal Aid Queensland the status of performing the
function of a solicitor and being a firm of solicitors in that its in-house
lawyers are taken to be employed by Legal Aid Queensland as a firm of
solicitors.
Clause 74 requires Legal Aid Queensland and its lawyers to observe the
professional standards and obligations of a private lawyer engaged in legal
practice.
Clause 75 provides that legal professional privilege applies to certain
communications made by Legal Aid Queensland.
Clause 76 sets out the characteristics of a Legal Aid lawyer performing
the function of a solicitor under certain conditions such as requiring a Legal
Aid lawyer to hold a current practising certificate.
Clause 77 provides for the application of various parts of the Queensland
Law Society Act 1952 (these parts deal with complaints against solicitors for
malpractice, professional misconduct or unprofessional conduct) to a Legal
Aid Queensland lawyer.
Clause 78 provides for the application of any law, written or unwritten,
about the conduct of barristers apply to a Legal Aid Queensland lawyer who
is a barrister.
Clause 79 provides that Legal Aid Queensland is a solicitor on the
record.
PART 6--MISCELLANEOUS
Clause 80 gives Legal Aid Queensland employees protection from civil
liability under certain conditions.
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Legal Aid Queensland
Clause 81 provides that Legal Aid Queensland is not liable for particular
acts or omissions of Legal Aid agents.
Clause 82 sets out the requirement for confidentiality by Legal Aid
Queensland employees and other persons.
Clause 83 enables the Legal Aid Queensland or the Board to require a
Legal Aid Queensland employee to give relevant information to it so as to
enable the exercise of its functions under the Act.
Clause 84 sets out an offence for a person who makes a
misrepresentation in applying for legal assistance without reasonable
excuse.
Clause 85 sets out the proceedings for any offence under the Act.
Clause 86 sets out various evidentary requirements.
Clause 87 enables the Legal Aid Board to approve forms under the Act.
Clause 88 sets out the regulation making power.
PART 7--TRANSITIONAL PROVISIONS AND
REPEAL
Division 1--Transitional provisions
Clause 89 states that the former entity (Legal Aid Commission of
Queensland) is abolished and its members go out of office.
Clause 90 enables the Governor in Council to establish a transitional
board to deal with certain matters.
Clause 91 provides that the consultative committees, Legal Aid
Committees and Review Committees established under the former Act are
abolished and the members go out of office.
Clause 92 provides that the existing decisions and directions of, and
delegations by, the former entity's director are taken to continue as
decisions or directions of, or delegations by, the Chief executive Officer.
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Legal Aid Queensland
Clause 93 preserves any current requests by persons who have sought to
have the decisions in respect of their applications for legal aid funding
reconsidered or reviewed by a review committee or legal aid committee and
that the Legal Aid Board may reconsider or review the decision of the
previous entity as if the former Act had not been repealed and the Legal Aid
Board had such power to reconsider and review.
Clause 94 deals with the assets of the former entity and how they are to
be dealt with under the Act. This clause also states that the legal aid fund
established under the former Act is an asset and deals with any reserve
remaining in that fund.
Clause 95 provides that the former entity's rights and liabilities vest in
Legal Aid Queensland.
Clause 96 enables the making of regulations to revest (transfer back) any
asset, right or liability to a stated entity. This clause has a sunset provision
of one year after commencement of the Act.
Clause 97 deals with proceedings by or against the former entity that
have not ended.
Clause 98 deals with existing arrangements or contracts with the former
entity.
Clause 99 deals with the position of the former entity's director.
Clause 100 provides that the existing employees and Assistant Directors
of the former entity become employees of Legal Aid Queensland and that
they are entitled to all existing and accruing rights of employment.
Clause 101 provides that any reference in a document or an Act to the
Legal Aid Act 1978 is a reference to the new Act.
Clauses 102 and 103 provides that a reference to the former entity and
former director is a reference to Legal Aid Queensland and the chief
executive officer respectively.
Division 2 --Repeal
Clause 104 provides for the repeal of the Legal Aid Act 1978.
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Legal Aid Queensland
SCHEDULE
MINOR AMENDMENTS
The Schedule to the Act provides for the dictionary which sets out
definitions of particular words used in the Act.
© The State of Queensland 1997