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S. 1(1) amended by No. 48/1995 s. 4.
This Act may be cited as the Legal Aid Act 1978.
The several provisions of this Act shall come into operation on the day or the respective days to be fixed by proclamation or successive proclamations of the Governor in Council published in the Government Gazette.
S. 1(3) repealed by No. 10/1986 s. 4(d).
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Part I—Preliminary
S. 2 amended by No. 61/1989 s. 4(a).
In this Act, unless inconsistent with the context or subject-matter—
S. 2(1) def. of alternative dispute resolution program inserted by No. 17/2005 s. 3(a).
alternative dispute resolution program means a program for the resolution of disputes out of court and includes conferencing;
S. 2(1) def. of annual report inserted by No. 15/2018 s. 18.
annual report means a report under section 12N(1);
applicant means a person who has made application for legal assistance under this Act;
S. 2(1) def. of assisted person amended by No. 48/1995 s. 5(c).
assisted person means a person to whom legal assistance is provided under this Act, except Part VIA;
S. 2(1) def. of Australian lawyer inserted by No. 18/2005 s. 18(Sch. 1 item 57.1(a)), repealed by No. 17/2014 s. 160(Sch. 2 item 55.1(a)).
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Australian Legal Aid Office means the division of the Attorney-General's Department of the Commonwealth that is designated the Australian Legal Aid Office;
S. 2(1) def. of board inserted by No. 48/1995 s. 5(b).
board means the board of directors of VLA established under section 11;
S. 2(1) def. of chairman repealed by No. 48/1995 s. 5(a).
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S. 2(1) def. of chairperson inserted by No. 48/1995 s. 5(b).
chairperson means the chairperson of the board;
S. 2(1) def. of chief executive officer inserted by No. 15/2018 s. 22(2).
chief executive officer means the chief executive officer of VLA appointed under section 12JB;
S. 2(1) def. of commencing day repealed by No. 48/1995 s. 5(a).
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S. 2(1) def. of Commission amended by No. 10/1986 s. 4(c), repealed by No. 48/1995 s. 5(a).
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S. 2(1) def. of Common-wealth Commission amended by No. 48/1995 s. 5(d).
Commonwealth Commission means the Attorney-General's Department of the Commonwealth exercising its functions in respect of legal aid;
S. 2(1) def. of community legal service inserted by No. 15/2018 s. 11.
community legal service has the same meaning as in the Legal Profession Uniform Law (Victoria);
S. 2(1) def. of conference chairperson inserted by No. 17/2005 s. 3(a).
conference chairperson means a person to whom a matter has been referred for conferencing;
S. 2(1) def. of conferencing inserted by No. 17/2005 s. 3(a).
conferencing means a structured negotiation process in which a conference chairperson assists the parties to a dispute to settle the dispute;
S. 2(1) def. of corporate plan inserted by No. 15/2018 s. 18.
corporate plan means a plan under section 12MC(1);
Court includes a tribunal;
S. 2(1) def. of current practitioner inserted by No. 35/1996 s. 453(Sch. 1 item 47.1(a)), amended by No. 102/1997 s. 49(Sch. item 3), repealed by No. 18/2005 s. 18(Sch. 1 item 57.1(b)).
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S. 2(1) def. of Director repealed by No. 48/1995 s. 5(a).
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S. 2(1) def. of duty lawyer services amended by No. 18/2005 s. 18(Sch. 1 item 57.1(c)).
duty lawyer services means legal services provided by an Australian lawyer attending a court, being legal services consisting of appearing on behalf of a person or giving legal advice to a person at that court, otherwise than by prior arrangement with the person;
S. 2(1) def. of Federation of Community Legal Centres inserted by No. 15/2018 s. 37.
Federation of Community Legal Centres means the Federation of Community Legal Centres (Vic.) Inc. ABN 30 036 539 902;
Fund means the Legal Aid Fund established under section 41;
S. 2(1) def. of incorporated legal practice inserted by No. 18/2005 s. 18(Sch. 1 item 57.1(a)), amended by No. 17/2014 s. 160(Sch. 2 item 55.1(b)).
incorporated legal practice has the same meaning as in the Legal Profession Uniform Law (Victoria);
S. 2(1) def. of incorporated practitioner inserted by No. 35/1996 s. 453(Sch. 1 item 47.1(b)), repealed by No. 18/2005 s. 18(Sch. 1 item 57.1(b)).
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S. 2(1) def. of independent reviewer inserted by No. 44/1997 s. 17(1)(a).
independent reviewer means member of the panel of independent reviewers appointed under section 18 and includes the panel chairperson;
S. 2(1) def. of Law Institute inserted by No. 15/2018 s. 37.
Law Institute has the same meaning as in the Legal Profession Uniform Law Application Act 2014;
S. 2(1) def. of law practice inserted by No. 18/2005 s. 18(Sch. 1 item 57.1(a)), amended by No. 17/2014 s. 160(Sch. 2 item 55.1(b)).
law practice has the same meaning as in the Legal Profession Uniform Law (Victoria);
S. 2(1) def. of legal advice amended by No. 18/2005 s. 18(Sch. 1 item 57.1(c)).
legal advice means advice on matters of law given by an Australian lawyer and includes assistance in preparing an application for legal assistance and in furnishing information required for that purpose;
S. 2(1) def. of legal aid amended by Nos 48/1995 s. 5(e), 17/2005 s. 3(b), 18/2005 s. 18(Sch. 1 item 57.1(d)).
legal aid means—
education, advice or information in or about the law;
any legal services that may be provided by a law practice or an Australian lawyer; and
any other matter within the scope of section 6, 7 or 8—
and, without limiting or affecting the generality of the foregoing, includes alternative dispute resolution programs, duty lawyer services, legal advice and legal assistance;
S. 2(1) def. of legal aid appeal committee inserted by No. 10/1986 s. 16(a)(i), repealed by No. 44/1997 s. 17(1)(b).
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S. 2(1) def. of legal aid arrangement inserted by No. 93/1998 s. 13.
legal aid arrangement means an arrangement with respect to the provision of legal aid under which—
the Commonwealth—
makes available amounts of money for the provision of legal aid; and
specifies the legal aid VLA is to provide in consideration of those amounts of money, including any priorities to be observed by VLA in providing legal aid as between classes of persons or classes of matters; and
VLA provides that legal aid in accordance with that arrangement;
S. 2(1) def of legal aid review committee substituted by No. 10/1986 s. 9(a), repealed by No. 44/1997 s. 17(1)(b).
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legal assistance means legal services provided under this Act other than by way of duty lawyer services or legal advice;
S. 2(1) def. of legal assistance information inserted by No. 15/2018 s. 11.
legal assistance information means information that is—
for use by the community; and
designed to provide guidance or education in relation to the law, including—
guidance (other than legal advice) for identifying, preventing or dealing with legal problems; and
information on support services that are related to the law;
S. 2(1) def. of legal practitioner inserted by No. 18/2005 s. 18(Sch. 1 item 57.1(a)), amended by No. 17/2014 s. 160(Sch. 2 item 55.1(c)).
legal practitioner means an Australian legal practitioner;
S. 2(1) def. of managing director inserted by No. 48/1995 s. 5(b), repealed by No. 15/2018 s. 22(1).
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order for costs means a judgment, order, decree, award or direction for payment of the costs of one party to the proceedings by another or others, whether given or made in that proceedings or not;
S. 2(1) def. of officer of the Commission repealed by No. 48/1995 s. 5(a).
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S. 2(1) def. of panel chairperson inserted by No. 44/1997 s. 17(1)(c).
panel chairperson means chairperson of the panel of independent reviewers appointed under section 18;
S. 2(1) def. of panel member inserted by No. 44/1997 s. 17(1)(c).
panel member, in relation to the panel of independent reviewers, includes the panel chairperson;
S. 2(1) def. of practitioner repealed by No. 18/2005 s. 18(Sch. 1 item 57.1(b)).
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prescribed means prescribed by regulations made under this Act;
S. 2(1) def. of previous committee repealed by No. 48/1995 s. 5(a).
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S. 2(1) def. of principal inserted by No. 18/2005 s. 18(Sch. 1 item 57.1(a)), amended by No. 17/2014 s. 160(Sch. 2 item 55.1(b)).
principal, of a law practice, has the same meaning as in the Legal Profession Uniform Law (Victoria);
S. 2(1) def. of private law practice inserted by No. 18/2005 s. 18(Sch. 1 item 57.1(a)).
private law practice means a law practice other than VLA;
S. 2(1) def. of private legal practitioner inserted by No. 18/2005 s. 18(Sch. 1 item 57.1(a)).
private legal practitioner means a legal practitioner who is not employed by VLA;
S. 2(1) def. of private practitioner substituted by No. 35/1996 s. 453(Sch. 1 item 47.1(c)), amended by No. 102/1997 s. 49(Sch. item 3), repealed by No. 18/2005 s. 18(Sch. 1 item 57.1(b)).
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S. 2(1) def. of professional association inserted by No. 18/2005 s. 18(Sch. 1 item 57.1(a)), substituted by No. 17/2014 s. 160(Sch. 2 item 55.1(d)).
professional association means a local professional association within the meaning of the Legal Profession Uniform Law Application Act 2014;
S. 2(1) def. of Review Committee repealed by No. 10/1986 s. 16(a)(ii).
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S. 2(1) def. of solicitor repealed by No. 35/1996 s. 453(Sch. 1 item 47.1(d)).
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S. 2(1) def. of strategic plan inserted by No. 15/2018 s. 18.
strategic plan means a plan under section 12MB(1);
the State means the State of Victoria;
S. 2(1) def. of Victoria Law Foundation inserted by No. 15/2018 s. 37.
Victoria Law Foundation means the body corporate continued by section 4 of the Victoria Law Foundation Act 2009;
S. 2(1) def. of Victorian Bar inserted by No. 15/2018 s. 37.
Victorian Bar has the same meaning as in the Legal Profession Uniform Law Application Act 2014;
S. 2(1) def. of VLA inserted by No. 48/1995 s. 5(b).
VLA means Victoria Legal Aid established under section 3.
S. 2(2) inserted by No. 61/1989 s. 4(b).
It is the intention of Parliament that in this Act person includes a body corporate.
Pt 2 (Heading and ss 3–12) amended by Nos 10/1986 ss 4(a)(b), 5–7, 8(2), 9(b)(c), 13(2), 20(2)(a) (b), 16/1987 s. 4(3)(Sch. 1 item 13), 38/1992 ss 4–6, 14/1994 ss 3, 4, substituted as Pt 2 (Heading and ss 3–12N) by No. 48/1995 s. 6.
Part II—Victoria Legal Aid[1]
S. 3 substituted by No. 48/1995 s. 6.
There is established a body by the name "Victoria Legal Aid".
VLA—
is a body corporate with perpetual succession;
has an official seal;
may sue and be sued;
may acquire, hold and dispose of real and personal property;
may do and suffer all acts and things that a body corporate may by law do and suffer.
All courts must take judicial notice of the seal of VLA affixed to a document and, until the contrary is proved, must presume that it was duly affixed.
The official seal of VLA must be kept in such custody as VLA directs and must not be used except as authorised by VLA.
S. 4 substituted by No. 48/1995 s. 6.
The objectives of VLA are—
to provide legal aid in the most effective, economic and efficient manner;
to manage its resources to make legal aid available at a reasonable cost to the community and on an equitable basis throughout the state;
S. 4(ba) inserted by No. 15/2018 s. 12.
to ensure the coordination of the provision of legal aid so that it responds to the legal and related needs of the community;
S. 4(bb) inserted by No. 15/2018 s. 12.
to ensure the coordination of the provision of legal assistance information so that the information responds to the legal and related needs of the community, including by being—
accessible; and
current; and
high quality; and
of sufficient breadth;
to provide to the community improved access to justice and legal remedies;
to pursue innovative means of providing legal aid directed at minimising the need for individual legal services in the community.
S. 5 substituted by No. 48/1995 s. 6.
VLA does not represent the Crown.
S. 6 substituted by No. 48/1995 s. 6.
The functions of VLA are—
to provide legal aid in accordance with this Act;
S. 6(1)(ab) inserted by No. 15/2018 s. 13(1).
to coordinate, and undertake strategic planning for, the provision of legal aid by—
VLA; and
subject to subsection (1A), community legal services; and
private legal practitioners by arrangement with VLA;
S. 6(1)(ac) inserted by No. 15/2018 s. 13(1).
subject to subsection (1B), to coordinate the provision of legal assistance information, including by facilitating the expansion of the provision of that information as appropriate;
S. 6(1)(b) amended by No. 39/2022 s. 844(1).
to control and administer the Fund;
S. 6(1)(c) inserted by No. 39/2022 s. 844(2).
to provide advocacy services other than in connection with legal services;
Example
Non-legal mental health advocacy services within the meaning of the Mental Health and Wellbeing Act 2022.
S. 6(1)(d) inserted by No. 39/2022 s. 844(2).
to coordinate, and participate in, strategic planning for the provision of services of a kind referred to in paragraph (c) by VLA and other bodies.
S. 6(1A) inserted by No. 15/2018 s. 13(2).
VLA does not have the function of coordinating, and undertaking strategic planning for, the provision of legal aid in Victoria by—
Aboriginal and Torres Strait Islander Corporation Family Violence Prevention and Legal Service (Victoria) ABN 47 125 370 108; or
(b) Victorian Aboriginal Legal Service Co-operative Ltd ABN 45 926 675 900; or
any other organisation (whether incorporated or not) that holds itself out as an Aboriginal and Torres Strait Islander Legal Service.
S. 6(1B) inserted by No. 15/2018 s. 13(2).
VLA does not have the function of coordinating the provision of legal assistance information in Victoria by an entity referred to in subsection (1A).
VLA may—
in co-operation with a government department or body concerned with social service or social welfare, arrange measures and take steps that may be conducive to meeting the need for legal aid in the community;
enter into arrangements from time to time with a body or person with respect to any investigation, study or research that, in the opinion of VLA, is necessary or desirable for the purposes of this Act;
make recommendations to or through the Attorney-General with respect to any reforms of the law the desirability for which has come to its attention in the course of performing its functions;
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 laws in force in the State;
undertake research into all aspects of legal aid including new methods of financing and providing legal aid;
S. 6(2)(f) amended by No. 93/1998 s. 16(1)(a).
subject to and in accordance with any agreement or arrangement made between the Commonwealth and the State under section 49, provide financial assistance to voluntary legal aid bodies in the State in respect of the provision of legal aid;
S. 6(2)(fa) inserted by No. 93/1998 s. 16(1)(b).
subject to this Act, enter into legal aid arrangements and provide legal aid in accordance with those arrangements;
do all things necessary or convenient to be done for, or in connection with, the performance of its functions.
S. 6(3) inserted by No. 55/2009 s. 53, substituted by No. 82/2012 s. 163(1).
VLA may enter into arrangements to provide legal services—
S. 6(3)(a) amended by Nos 82/2012 s. 310, 30/2016 s. 82(a).
on behalf of the prescribed person referred to in section 151 of the Independent Broad-based Anti-corruption Commission Act 2011, to applicants for legal assistance under that section;
on behalf of the Secretary to the Department of Justice, to other persons.
S. 6(4) inserted by No. 55/2009 s. 53, amended by Nos 82/2012 s. 163(2), 30/2016 s. 82(b).
If an arrangement is entered into under subsection (3)(a), VLA may carry out the functions of the prescribed person under section 151 of the Independent Broad-based Anti-corruption Commission Act 2011.
S. 6(5) inserted by No. 55/2009 s. 53.
An arrangement entered into under subsection (3)(b) requires the prior approval of the Attorney‑General.
S. 6(6) inserted by No. 55/2009 s. 53.
Parts V, VI, VIA, VIB and VII do not apply to the provision of legal services under an arrangement entered into under subsection (3).
S. 7 substituted by No. 48/1995 s. 6, amended by No. 55/2009 s. 54 (ILA s. 39B(1)).
In performing its functions, VLA must—
S. 7(1)(a) amended by No. 15/2018 s. 14(1).
ensure that legal aid is provided in the most effective, efficient and economic manner and in a manner which dispels fear and distrust, including by—
S. 7(1)(a)(i) inserted by No. 15/2018 s. 14(1).
arranging, as appropriate, for legal aid to be provided by VLA, community legal services and private legal practitioners by arrangement with VLA; and
S. 7(1)(a)(ii) inserted by No. 15/2018 s. 14(1).
arranging for the provision of legal aid that is appropriate and proportionate to the capabilities of the person to whom it is provided and also to the complexity of the matter for which it is provided;
establish any local offices that it considers appropriate and generally use its best endeavours to make legal aid available throughout the State;
S. 7(1)(c) amended by No. 93/1998 s. 16(1)(c) (i)–(iii).
subject to and in accordance with any legal aid arrangement and the agreements and arrangements made between the Commonwealth and the State under section 49 from time to time—
determine or vary priorities in the provision of legal aid as between classes of persons and classes of matters or both;
have regard to the recommendations of the Commonwealth Commission concerning the provision of legal aid by VLA—
in or in connection with a claim, right or proceeding involving a matter arising under a law of the Commonwealth; or
in a proceeding in a federal court or in a State court exercising federal jurisdiction; or
in respect of persons who are agreed by the Attorney-General and the Attorney-General of the Commonwealth to be persons in respect of whom the Commonwealth has a special responsibility;
liaise and co-operate with the Commonwealth Commission in the performance by that Commission of its functions and, in particular, provide to the Commonwealth Commission such statistics and other information as that Commission may reasonably require;
S. 7(1)((d) amended by No. 93/1998 s. 16(1)(d).
subject to any legal aid arrangement, determine the matters or classes of matters in respect of which legal services may be performed on behalf of assisted persons by way of legal aid;
S. 7(1)((e) amended by No. 18/2005 s. 18(Sch. 1 item 57.2(a)).
co-operate and, if VLA considers it desirable to do so, make reciprocal arrangements with other legal aid commissions, professional associations and other bodies engaged or interested in the provision of legal aid in the State or elsewhere;
S. 7(1)((f) substituted by No. 18/2005 s. 18(Sch. 1 item 57.2(b)).
liaise with professional associations in order to facilitate the use, in appropriate circumstances, of services provided by private legal practitioners;
S. 7(1)((g) amended by No. 18/2005 s. 18(Sch. 1 item 57.2(c)).
make maximum use of services which private legal practitioners offer to provide on a voluntary basis;
endeavour to secure the services of interpreters, marriage counsellors, welfare officers and other appropriate persons to assist in connection with matters in respect of which legal aid is provided;
inform the public of the services provided by VLA and the conditions on which those services are provided;
encourage and permit law students to participate, so far as VLA considers it practicable and proper to do so, on a voluntary basis and under professional supervision in the provision of legal aid;
have regard to the amount of money for the time being standing to the credit of the Fund and the amount of money likely to be received by VLA for the purposes of the Fund.
S. 7(1A) inserted by No. 15/2018 s. 14(2).
In performing its function under section 6(1)(ab), VLA must consult with—
the Law Institute; and
the Victorian Bar; and
the Victoria Law Foundation; and
the Federation of Community Legal Centres; and
community legal services; and
private legal practitioners who provide legal aid by arrangement with VLA.
S. 7(1B) inserted by No. 15/2018 s. 14(2).
In performing its function under section 6(1)(ac), VLA must determine, in consultation with persons and bodies who produce and provide legal assistance information in Victoria, how that information is best produced and provided.
S. 7(2) inserted by No. 55/2009 s. 54.
VLA must account separately for all money paid under an arrangement entered into under section 6(3) and that money is not payable to the Legal Aid Fund.
S. 8 substituted by No. 48/1995 s. 6.
Legal aid may be provided by VLA—
by making available the services of officers of VLA;
S. 8(1)(b) amended by Nos 17/2005 s. 4, 18/2005 s. 18(Sch. 1 item 57.3(a)).
by arranging for the services of private legal practitioners or other persons to be made available;
by making available and by arranging both the services referred to in paragraphs (a) and (b).
S. 8(2) amended by No. 18/2005 s. 18(Sch. 1 item 57.3(a)).
VLA must determine guidelines in relation to the allocation of work between officers of VLA and private legal practitioners having regard to—
the need for legal assistance services to be readily available and easily accessible to disadvantaged people;
S. 8(2)(ab) inserted by No. 93/1998 s. 16(1)(e).
the requirements (if any) of any legal aid arrangement;
S. 8(2)(b) amended by No. 18/2005 s. 18(Sch. 1 item 57.3(b)).
the desirability of an assisted person being entitled to select a legal practitioner of his or her choice;
the need for appropriate use to be made of the services capable of being provided by officers of VLA;
the importance of maintaining the independence of the private legal profession;
the need for the Fund to be used effectively and efficiently.
S. 9 substituted by No. 48/1995 s. 6, amended by No. 93/1998 s. 16(1)(f).
VLA must determine, having regard to funds available, any legal aid arrangement and relevant recommendations of the Commonwealth Commission, guidelines in relation to the provision of legal aid and, in particular, guidelines to be applied in—
the application of section 24 for the purpose of determining whether legal assistance may be provided to a person under this Act;
the application of section 26(2) for the purpose of determining whether a person requiring legal advice should be required to make an application for legal assistance;
determining whether the providing of legal assistance to a person will be subject to all or any of the conditions referred to in section 27(1);
determining the amount of costs or disbursements that will be required to be paid to VLA by an assisted person if the proceeding in respect of which the legal assistance was provided is decided, compromised or results in the person's favour;
determining the extent, if any, to which VLA will pay costs awarded against a legally assisted person in a proceeding.
S. 10 substituted by No. 48/1995 s. 6.
VLA may, by instrument under its official seal, delegate to—
a director of VLA;
S. 10(ab) inserted by No. 15/2018 s. 23.
the chief executive officer;
an officer of VLA;
S. 10(c) substituted by No. 18/2005 s. 18(Sch. 1 item 57.4).
a private law practice;
S. 10(d) substituted by No. 44/1997 s. 17(2).
an independent reviewer—
S. 10(e) repealed by No. 44/1997 s. 17(2).
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any power of VLA, other than—
S. 10(f) amended by No. 93/1998 s. 16(1)(g).
the powers referred to in sections 7(c)(i) and (d), 8(2), 9 and 49AA; and
subject to section 12A(c)(ii), this power of delegation.
S. 11 substituted by No. 48/1995 s. 6.
There shall be a board of directors of VLA consisting of—
S. 11(a) amended by No. 44/1997 s. 13(1)(a).
a chairperson nominated by the Attorney-General;
S. 11(b) amended by No. 44/1997 s. 13(1)(a), repealed by No. 15/2018 s. 24(1).
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S. 11(c) substituted by No. 44/1997 s. 13(1)(b), amended by Nos 38/2016 s. 12, 15/2018 s. 24(2).
6 directors nominated by the Attorney-General of whom—
at least one must have experience in financial management; and
S. 11(c)(ii) amended by No. 15/2018 s. 24(3).
at least one must have experience in public management; and
S. 11(c)(iii) inserted by No. 15/2018 s. 24(4).
at least one must have experience with criminal proceedings (whether as a legal practitioner or a judicial officer); and
S. 11(c)(iv) inserted by No. 15/2018 s. 24(4).
at least one must have experience in other areas of legal practice engaged in by VLA or its officers.
S. 11(d) repealed by No. 44/1997 s. 13(1)(b).
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S. 12 substituted by No. 48/1995 s. 6.
The board of VLA—
is responsible for the management of the affairs of VLA and ensuring that it achieves its objectives; and
may exercise the powers of VLA.
Without limiting subsection (1), it is the role of the board—
to determine the policies, priorities and strategies of VLA; and
S. 12(2)(ab) inserted by No. 15/2018 s. 15(1).
to make decisions regarding how amounts to be paid out of the Fund are to be allocated across—
VLA; and
community legal services; and
private legal practitioners providing legal aid by arrangement with VLA; and
to deal with any matters in accordance with guidelines issued by the board under subsection (3); and
to ensure that VLA performs its functions and exercises its powers in an effective, efficient and economical manner.
The board may issue guidelines specifying matters or classes of matter relating to the provision of legal aid that it requires to be referred to it for decision.
S. 12(4) inserted by No. 93/1998 s. 16(2).
The board must have regard to any legal aid arrangement in carrying out its role under subsections (2) and (3).
S. 12(5) inserted by No. 15/2018 s. 15(2).
The board must have regard to the advice and recommendations of the collaborative planning committee in carrying out its role under subsection (2)(ab).
S. 12A inserted by No. 48/1995 s. 6, repealed by No. 15/2018 s. 25.
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S. 12B inserted by No. 48/1995 s. 6.
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