LEGAL REPRESENTATION OFFICE BILL 1998 Explanatory Notes

Queensland Bills Explanatory Notes

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LEGAL REPRESENTATION OFFICE BILL 1998

1 Legal Representation Office LEGAL REPRESENTATION OFFICE BILL 1998 EXPLANATORY NOTES GENERAL OUTLINE Objectives of the Legislation The objective is to establish the Legal Representation Office as an independent statutory body to provide representation to those called or to be called before investigations by bodies akin to Commissions of Inquiry. The assistance will in practice extend to aid during an interview or for the preparation of a submission or statement. Reasons for the objectives and how they will be achieved In order to deal with serious crime, grave situations or gross misconduct by public officials, Parliament has granted extraordinary powers to bodies, such as Commissions of Inquiry (which exist on an ad hoc basis), the Criminal Justice Commission, the Parliamentary Criminal Justice Commission and as proposed for the Crime Commission. Legislation establishing the Crime Commission was passed by Parliament on 20 November 1997. This has not commenced. The Crime Commission Act contains provision for legal representation, to be funded by the Crime Commission, before investigative hearings. For the individual being investigated by an investigative agency, much may be at stake--personal or professional reputation and the possibility that criminal or disciplinary charges will be recommended. It is suggested that if extraordinary powers are to be used against a citizen, the State should provide a person called before an inquiry with legal representation. The Inquiry Legal Representation Office has existed since 25 November 1996. Initially, it provided assistance to those before the Commission of Inquiry into the Effectiveness of the Criminal Justice Commission. In

2 Legal Representation Office February 1997 the brief was extended to those called before the Inquiry into Police Corruption and Drugs, being chaired by the Honourable Mr W Carter QC. It is desirable to establish the Legal Representation Office as an independent body with statutory recognition. It is necessary to emphasise that the office is independent from Government. This will ensure that those persons using legal services provided or paid for by the Legal Representation Office have faith in the integrity of the legal practitioners acting for them. The essence of the special relationship between lawyer and client is faith that confidence will be maintained, the client's interests advanced and services of a high professional standard are provided. Administrative cost to Government of implementation The cost to Government of the minimum permanent establishment for the Legal Representation Office is estimated as $321,130. From time to time, greater resources may be required, for example, if a significant and lengthy public inquiry occurred. Fundamental legislative principles Statutory enactment will give greater security to the principle that legal representation should be provided to those forced to appear or intended to be called to appear before Commissions of Inquiry and other bodies exercising extraordinary coercive power. Parliamentary recognition of this principle will be a significant protection and advancement of the rights of members of the community. The availability of legal assistance will help citizens ensure that they are treated fairly and are able to articulate and assert their rights. Consultation Consultation on this Bill has only occurred within Government and with the Inquiry Legal Representation Office.

3 Legal Representation Office NOTES ON PROVISIONS PART 1--PRELIMINARY Clause 1 states the short title as the Legal Representation Office Act 1998. Clause 2 states the main objects of the Act to provide efficiently for legal services for those appearing before investigative agencies. Clause 3 refers to the schedule containing the dictionary, which defines certain words. Clause 4 defines the meaning of "legal assistance". Clause 5 defines the meaning of "legally assisted person". PART 2--LEGAL ASSISTANCE Division 1--Preliminary Clause 6 defines when the part applies, that is, the range of legal services provided for by the Act. Division 2--Giving legal assistance Clause 7 permits a person to apply for legal assistance.

4 Legal Representation Office Clause 8 states that an application must be in an approved form. Clause 9 provides that legal assistance may only be provided where an applicant meets criteria which are contained in a regulation or published by the office and notified in the gazette. The clause provides for any regulation to prevail over an office publication in the event of inconsistency. Clause 10 provides that a person with an interest adverse to the State. Commonwealth or certain other public bodies may be assisted. Clause 11 provides for the office to decide applications by giving conditional or unconditional approval or a refusal. Clause 12 provides for the kinds of conditions which can be imposed on an approval, for instance, contribution to the assistance or the giving of security. Clause 13 provides for the means of enforcing a condition of approval. Clause 14 provides for the giving of written notice of the refusal of an application. Division 3--General duties of lawyers and office agents Clause 15 provides for the giving of certain information to the office by an office agent, in order to allow the office to conduct an audit or for another purpose. The clause provides that the giving of such information to the office is permissible despite any legal professional privilege which arises in relation to that information between the assisted person and the office agent. Division 4--Office's recovery of its costs and expenses Clause 16 provides that the office agent must deal with contributions received from an assisted person in the way directed by the office. Division 5--Office agents' fees

5 Legal Representation Office Clause 17 provides for the amounts payable by the office to an office agent. PART 3--LEGAL REPRESENTATION OFFICE Division 1--Establishment and constitution Clause 18 establishes the office. Clause 19 constitutes the office as a body corporate, which does not represent the state. Division 2--Functions and powers Clause 20 provides for the main functions of the office. Clause 21 provides for the general powers of the office. Clause 22 provides the power to enter into legal assistance agreements. Clause 23 provides for other powers of the office. These relate to deciding priorities and strategies. This is intended to encourage proactive management of the office. Clause 24 provides for a report to the Minister on any issue, but the report cannot relate to legal assistance to a particular person. Division 3--Provisions relating to the director Clause 25 provides for the appointment of a director. Clause 26 provides for the terms and conditions of appointment of the director. Clause 27 provides for the preservation of rights as a public service

6 Legal Representation Office officer, where the director is a public servant. Clause 28 provides for the granting of leave of absence to the director. Clause 29 provides for resignation of the director. Clause 30 provides for termination of appointment of the director. Clause 31 provides for the delegation of the office's or director's powers. Certain powers cannot be delegated. Clause 32 provides for appointment of an acting director. Division 4--Operations of the office Clause 33 provides a mechanism for dealing with conflicts of interest on the part of the director. Clause 34 provides for the Minister to give the office directions. These must be tabled in the Legislative Assembly. This means that they will be published and open to scrutiny. The directions cannot relate to the giving of legal assistance to a particular person. PART 4--OTHER PROVISIONS ABOUT THE OFFICE Division 1--Control of the office Clause 35 provides for control of the office staff, activities and property by the director. The office is able to be attached to a department for administrative support services. Division 2--Employees

7 Legal Representation Office Clause 36 provides for the appointment of employees by the office. Division 3--Legal practice Clause 37 allows for external employment of or practise by office lawyers, only with the director's written approval. Clause 38 provides that certain provisions essentially relating to trust accounts do not apply to the office lawyers. Clause 39 provides that the office is taken to be a solicitors' firm. Clause 40 provides for the office and office lawyers to observe the rules of professional conduct a private lawyer is required to observe and to be subject to the same professional obligations. Clause 41 provides for the application of legal professional privilege to confidential communications made between a legally assisted person and the office or the office lawyers. Clause 42 provides for the office lawyers' right of practice but requires the office lawyer to hold a current practising certificate or being admitted on the roll of barristers. Clause 43 provides for the application of the provisions of the Queensland Law Society Act regulating complaints about malpractice, professional misconduct or unprofessional conduct or practice to office lawyers who are solicitors. Clause 44 applies the rules of conduct applying to barristers to office lawyers who are barristers. Clause 45 provides for the office lawyer to be the solicitor on the record. PART 5--NOTICE BY INVESTIGATIVE AGENCIES OF AVAILABILITY OF ASSISTANCE

8 Legal Representation Office Clause 46 provides for notice to be given by an investigative agency of the existence and availability of the office. The notice may be given by supplying a brochure. The clause provides for the consequences of not giving this notice. PART 6--MISCELLANEOUS Clause 47 provides for an office employee with protection from liability for certain acts or omissions and attaches any civil liability to the office. Clause 48 provides that the office is not liable for acts or omissions by an office agent made outside the scope of the agent's actual or apparent authority. Clause 49 imposes a secrecy obligation on past or present employees of the office. The clause contains exceptions to that obligation, for instance, when acting pursuant to the legally assisted person's instructions. Clause 50 provides an office employee with a duty to give information to the office, despite any privilege arising between the employee and a legally assisted person. Clause 51 provides for an offence of misrepresentation by a person applying for legal assistance. The purpose of this provision is to penalise the giving of false or misleading information by an applicant and the withholding of information which is required to be given under the Act. Clause 52 provides for proceedings to be brought under the Act. Clause 53 provides for certification by the director of evidentiary matters. Clause 54 provides for the approval of forms by the director. Clause 55 provides a regulation-making power. Clause 56 is a transitional provision, providing for the arrangements, rights, assets or liabilities of the current Inquiry Legal Representation Office to belong to the office created by the Act upon its commencement. SCHEDULE

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