Legal Aid Act 1977

This Act is the Legal Aid Act 1977.

The dictionary at the end of this Act is part of this Act.

Note 1 The dictionary at the end of this Act defines certain terms used in this Act, and includes references (signpost definitions) to other terms defined elsewhere.

For example, the signpost definition ‘statutory interest account—see the Legal Profession Act 2006, section 253.’ means that the term ‘statutory interest account’ is defined in the section and the definition applies to this Act.

Note 2 A definition in the dictionary (including a signpost definition) applies to the entire Act unless the definition, or another provision of the Act, provides otherwise or the contrary intention otherwise appears (see Legislation Act, s 155 and s 156 (1)).

A note included in this Act is explanatory and is not part of this Act.

Note See the Legislation Act, s 127 (1), (4) and (5) for the legal status of notes.

Part 2 Establishment and functions of legal aid commission

The Legal Aid Commission (A.C.T.) is established.

The commission—

is a body corporate; and

shall have a common seal; and

may acquire, hold and dispose of real and personal property; and

may enter into such agreements and arrangements as it considers desirable for this Act; and

may sue and be sued in its corporate name.

The commission shall provide legal assistance in ACT matters in accordance with this Act.

Legal assistance may be provided by the commission by arranging for the services of private legal practitioners to be made available at the expense of the commission or by making available the services of officers of the commission.

If a funding agreement is in force—

the Minister may direct the commission to apply the agreement; and

the commission shall comply with the Minister’s direction.

The Minister must present a copy of a direction under subsection (3) (a), together with a copy of the relevant funding agreement, to the Legislative Assembly no later than 15 sitting days after the day on which the direction is issued.

If the Minister issues a direction under section 8 (3) (a), this Act applies in relation to the provision of legal assistance in a matter to which the relevant funding agreement applies, subject to subsection (2).

The following provisions of this Act apply, in relation to the provision of legal assistance in a matter to which a funding agreement applies, only to the extent to which the provisions are not inconsistent with the funding agreement:

section 10 (1) (g) (Duties of commission);

section 11 (Guidelines for allocation of work);

section 12 (Guidelines for provision of assistance);

part 5 (Provision of legal assistance by commission);

part 6 (Reconsideration and review of decisions).

If the commission provides legal assistance by making available the services of officers of the commission, the commission shall pay any disbursements (including barristers’ fees) and out-of-pocket expenses incurred in the course of providing that assistance.

If the commission provides legal assistance by arranging for the services of private legal practitioners, the commission shall, except if the services are provided on a voluntary basis, pay fees to those private legal practitioners for the performance of those services (being fees determined by the commission in accordance with section 31C (1) and (2)) and shall pay any disbursements (including barristers’ fees) and out-of-pocket expenses properly incurred by them.

The commission may accept money or other property on trust and may act as trustee of money or other property held by the commission on trust.

Notwithstanding anything contained in any other provision of this Act, but subject to subsection (6), any money or other property held by the commission on trust shall be dealt with in accordance with the functions of the commission as trustee under the Trustee Act 1925.

The provisions of the Legal Profession Act 2006 about the keeping of accounts by solicitors in relation to money held by them on trust, and the audit of the accounts, do not apply in relation to money held by the commission on trust.

A regulation may make provision in relation to—

the application to the commission, with any changes prescribed by regulation, of regulations made for the Legal Profession Act 2006, section 253 (Statutory deposits); and

the investment by the commission of any amount held on trust by the commission.

Note A provision of a law that gives an entity (including a person) a function also gives the entity powers necessary and convenient to exercise the function (see Legislation Act, s 196 and dict, pt 1, def of entity).

In the exercise of its functions, the commission shall—

ensure that legal assistance is provided in the most effective, efficient and economical manner; and

ensure that its activities are carried on consistently with, and do not prejudice, the independence of the private legal profession; and

liaise and cooperate with and, if the commission considers it desirable to do so, make reciprocal arrangements with, other legal aid commissions, professional bodies representing private legal practitioners and other bodies engaged or interested in the provision of legal assistance in the ACT or elsewhere; and

liaise with professional bodies representing private legal practitioners in order to facilitate the use, in appropriate circumstances, of services provided by private legal practitioners; and

make maximum use of services which private legal practitioners offer to provide on a voluntary basis; and

make the services of the commission available to people eligible for legal assistance by establishing such local offices as it considers appropriate and by making such other arrangements as it considers appropriate; and

determine priorities in the provision of legal assistance as between different classes of people or classes of matters; and

arrange for the provision of duty lawyer services at sittings in the ACT of such courts and tribunals as the commission considers appropriate; and

endeavour to secure the services of language interpreters, relationship counsellors, welfare officers and other appropriate people to assist legally assisted people in connection with matters in respect of which they are provided with legal assistance; and

encourage and permit law students to participate, so far as the commission considers it practicable and proper to do so, on a voluntary basis, under professional supervision, in the provision of legal assistance by officers of the commission.

The commission shall—

make recommendations to the Minister with respect to any reforms of the law the desirability for which has come to its attention in the course of the exercise of its functions; and

initiate and carry out educational programs designed to promote an understanding by the public, and by sections of the public who have special needs in this respect, of their rights, powers, privileges and duties under the law in force in the ACT.

In the exercise of its functions, the commission shall have regard to the amount of money for the time being standing to the credit of the fund and of any money likely to be received by the commission for the purposes of the fund.

The commission shall determine guidelines for the allocation of work between officers of the commission and private legal practitioners having regard to the following considerations:

the need for legal services to be readily available and easily accessible to disadvantaged people;

the need to make the most efficient use of the money available to the commission;

the desirability of enabling a legally assisted person to obtain the services of the legal practitioner of the person’s choice;

the desirability of maintaining the independence of the private legal profession;

the desirability of enabling officers of the commission to utilise and develop their expertise and maintain their professional standards by conducting litigation and doing other kinds of professional legal work.

The Commission shall determine, and make known to the public, guidelines to be applied—

in the application of section 28 for the purposes of determining whether legal assistance may be provided to a person under this Act; and

in deciding the nature and extent of the legal assistance to be given in relation to a matter or proceeding or any part of a matter or proceeding; and

in determining whether the granting of legal assistance to a person will be subject to any of the conditions mentioned in section 31 (1); and

in determining the extent (if any) to which the commission will pay costs awarded against a legally assisted person in any proceeding; and

in determining the amount of costs or disbursements that will be required to be paid to the commission under section 33 by a legally assisted person who has been successful in the proceeding in respect of which the legal assistance was provided.

An officer of the commission, when practising as, or exercising any of the functions of, a solicitor, or exercising a right of audience in a court or before a tribunal, under this Act—

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 practitioner’s profession; and

is subject to the same professional duties as those to which a private legal practitioner is subject, by law or the custom of the legal profession, in the practice of the practitioner’s profession.

Subject to section 92AA, the like privileges as those that arise from the relationship of client and solicitor acting in the solicitor’s professional capacity and in the course of the solicitor’s professional employment shall arise between a person who has applied for legal assistance, or to whom legal assistance is being provided, under this Act and a statutory officer of the commission who practises as, or exercises any of the functions of, a solicitor for the person under this Act.

For the application of subsection (1) in respect of an officer of the commission who is practising as, or exercising any of the functions of, a solicitor, or is exercising a right of audience in a court or before a tribunal, in the ACT on behalf of a legally assisted person—

if there are no assistant executive officers—

the chief executive officer shall be deemed to be a solicitor lawfully practising on the officer’s own account in the ACT and retained by the person to act on the person’s behalf; and

the members of the staff of the commission shall be deemed to be employed by the chief executive officer; or

if there is an assistant executive officer or there are assistant executive officers—

the chief executive officer and the assistant executive officer or assistant executive officers shall be deemed to be a firm of solicitors lawfully practising in partnership in the ACT and retained by the person to act on the person’s behalf; and

the members of the staff of the commission shall be deemed to be employed by that firm.

Part 3 Board of commission

A board of the commission is established.