LEGAL AID ACT 1990

NORTHERN TERRITORY OF AUSTRALIA LEGAL AID ACT 1990 As in force at 20 November 2020 Table of provisions Part I Preliminary 1 Short title ......................................................................................... 1 2 Commencement .............................................................................. 1 3 Repeal ............................................................................................. 1 4 Interpretation ................................................................................... 1 Part II Establishment and function of Legal Aid Commission 5 Establishment of Commission ......................................................... 2 6 Constitution of Commission ............................................................. 3 7 Function and powers of Commission............................................... 3 8 Duties of Commission ...................................................................... 4 9 Arrangements for provision of legal assistance by Commission ...... 5 10 Financial assistance for assistance by voluntary bodies ................. 5 11 Commission may hold money on trust ............................................. 5 12 Guidelines for provision of assistance ............................................. 6 13 Professional conduct by officers of Commission ............................. 6 14 Agreement between Commonwealth and Territory ......................... 7 Part III Establishment and functions of Legal Aid Committees 15 Establishment of Committees .......................................................... 7 16 Constitution of Committees.............................................................. 7 17 Functions of Committees ................................................................. 8 Part IV Staff of Commission 18 Director ............................................................................................ 8 19 Acting Director ................................................................................. 9 19A Commission staff ............................................................................. 9 20 Rights, privileges and duties of officers ........................................... 9 21 Signature of legal practitioner .......................................................... 9 Part V Provision of legal assistance by Commission 22 Bringing services of Commission to public notice .......................... 10 23 Application for legal assistance ..................................................... 10 -- 1 of 44 -- Legal Aid Act 1990 ii 24 Determination of application for legal assistance........................... 11 25 Termination or variation of legal assistance................................... 12 26 Circumstances in which legal assistance may be provided ........... 12 27 Commission may assist person having interest adverse to Territory ......................................................................................... 14 28 Legal advice and duty lawyer services .......................................... 14 29 Contribution towards costs and expenses ..................................... 14 30 Arranging for services of private legal practitioners ....................... 15 31 Prohibition of additional payments to private practitioners ............. 18 32 Entitlement of assisted persons to costs in proceedings ............... 18 33 Payment by Commission of costs awarded against assisted persons .......................................................................................... 20 34 Notification of decisions ................................................................. 21 Part VI Reconsideration and review of decisions 35 Reconsideration of decisions ......................................................... 21 36 Establishment and constitution of Review Committees ................. 22 37 Appointment of members of Review Committee............................ 23 38 Function of Review Committee ...................................................... 23 39 Person requesting review to have opportunity to be heard ............ 24 40 Power of Review Committees to obtain information and documents ..................................................................................... 24 41 Decision of Review Committee ...................................................... 24 Part VII Finances of Commission Division 1 Accountability and reporting 42 Audit Act 1995 to apply .................................................................. 25 42A Financial responsibilities of Director .............................................. 25 42B Accounting and property manual to be kept .................................. 26 42C Annual financial statements ........................................................... 26 42D Annual reports ............................................................................... 27 Division 2 Funds of the Commission 43 Establishment of Legal Aid Fund ................................................... 28 44 Establishment of Contingency Legal Aid Fund .............................. 28 45 Application of funds ....................................................................... 28 46 Limitation of liability of Contingency Legal Aid Fund...................... 29 Part VIII Administrative provisions relating to Commission 47 Tenure of office.............................................................................. 29 48 Qualifications for appointment ....................................................... 29 49 Resignation.................................................................................... 30 50 Removal from office ....................................................................... 30 -- 2 of 44 -- Legal Aid Act 1990 iii 51 Acting Chairman of Commission ................................................... 30 51A Regional representatives of staff-elected Commissioner............... 31 52 Meetings ........................................................................................ 31 53 Interests to be disclosed ................................................................ 32 Part IX Miscellaneous 54 Delegation ..................................................................................... 32 55 Secrecy.......................................................................................... 32 56 Liabilities of Commission ............................................................... 34 57 False or misleading statements ..................................................... 34 58 Certificate as to amounts owing to Commission ............................ 35 59 Costs may be charged on land ...................................................... 35 60 Regulations.................................................................................... 35 Part X Transitional 61 Definitions ...................................................................................... 36 62 Legal aid provided by Australian Legal Aid Office ......................... 36 64 Validation ....................................................................................... 37 ENDNOTES -- 3 of 44 -- -- 4 of 44 -- NORTHERN TERRITORY OF AUSTRALIA ____________________ As in force at 20 November 2020 ____________________ LEGAL AID ACT 1990 An Act relating to the provision of legal aid Part I Preliminary 1 Short title This Act may be cited as the Legal Aid Act 1990. 2 Commencement This Act shall come into operation on a date to be fixed by the Administrator by notice in the Gazette. 3 Repeal The Legal Assistance Ordinance 1972 (No. 53, 1972) is repealed. 4 Interpretation (1) In this Act, unless the contrary intention appears: assisted person means a person to whom legal assistance is provided under this Act. audit has the same meaning as in the Audit Act 1995. Chairman means the Chairman of the Commission and includes a person appointed under section 51 to act in the office of Chairman while so acting. Commission means the Legal Aid Commission established by section 5. Commissioner means a Commissioner of the Commission and includes the Chairman of the Commission and a person acting as a Commissioner under section 51A. court includes a tribunal or person entitled to receive evidence on oath. -- 5 of 44 -- Part II Establishment and function of Legal Aid Commission Legal Aid Act 1990 2 Director means the Director of Legal Aid and includes a person appointed to act in the office of the Director. duty lawyer services means legal services provided by a legal practitioner (whether or not an officer) attending at a proceeding of a court, being legal services consisting of appearing on behalf of a person at, or giving legal advice to a person in connection with, the proceeding, otherwise than by prior arrangement with the person. Law Society means the Law Society Northern Territory as established by section 635 of the Legal Profession Act 2006. Legal Aid Committee means a Legal Aid Committee established under section 15. Legal Aid Fund means the Legal Aid Fund established by section 43. officer means the Director or a person employed by the Commission who is a legal practitioner. private legal practitioner means a legal practitioner practising on his or her own account or in partnership. produce includes permit access to. Review Committee means a Review Committee established under Part VI. (2) A reference in this Act to the provision of legal assistance shall be construed as a reference to the provision of legal services (including the giving of legal advice) without charge to the person to whom the legal assistance is provided with or without the making of a payment by the person, or the provision of financial assistance to bring or defend a civil proceeding. Part II Establishment and function of Legal Aid Commission 5 Establishment of Commission (1) There is established by this section a commission by the name of the Northern Territory Legal Aid Commission. (2) The Commission: (a) is a body corporate; (b) shall have a common seal; and -- 6 of 44 -- Part II Establishment and function of Legal Aid Commission Legal Aid Act 1990 3 (c) is capable, in its corporate name, of acquiring, holding and disposing of real (including leasehold) and personal property and of suing and being sued. (3) All courts, judges and persons acting judicially shall take judicial notice of the common seal of the Commission affixed to a document and shall assume that it was duly affixed. 6 Constitution of Commission (1) Subject to subsection (2), the Commission shall be constituted by: (a) a Chairman appointed by the Minister; (b) a Commissioner appointed by the Minister; (c) a Commissioner appointed by the Treasurer; (d) 2 Commissioners appointed by the Minister, one to represent community interests and one, on the nomination of the Law Society; and (f) a Commissioner appointed by the Minister after having been elected by the staff of the Commission from amongst their number as prescribed. (2) The Director shall, ex officio, be a Commissioner. (3) The performance of the function, or the exercise of the powers, of the Commission is not affected by reason of there being a vacancy in the membership of the Commission. (4) The appointment of a Commissioner is not invalidated, and shall not be called in question, by reason of a defect or irregularity in connection with his or her nomination. 7 Function and powers of Commission (1) The function of the Commission is to provide legal assistance in accordance with this Act. (2) The Commission has such powers as are necessary to enable it to perform its functions and exercise its powers. (3) In the performance of its function, the Commission shall have regard to the amount of money for the time being standing to the credit of the Legal Aid Fund or the Contingency Legal Aid Fund and of any money likely to be received by the Commission for the purposes of the Funds. -- 7 of 44 -- Part II Establishment and function of Legal Aid Commission Legal Aid Act 1990 4 8 Duties of Commission In the performance of its function, the Commission must do the following: (a) ensure that legal assistance is provided in the most effective, efficient and economic manner; (b) ensure that its activities are carried on consistently with, and do not prejudice, the independence of the private legal profession; (c) liaise and co-operate with, and if the Commission considers it desirable to do so, make reciprocal arrangements with, professional bodies representing private legal practitioners and other bodies engaged or interested in the provision of legal assistance in the Territory or elsewhere; (d) liaise with professional bodies representing private legal practitioners in order to facilitate the use, in appropriate circumstances, of services provided by private legal practitioners; (e) make maximum use of services which private legal practitioners offer to provide on a voluntary basis; (f) encourage and permit persons who are not legal practitioners 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; (g) provide officers and agencies of the Commonwealth or a State concerned in the provision of legal assistance with such statistical and other information as they reasonably require; (h) make its services available to persons eligible for legal assistance by establishing such local offices, and by making such other arrangements, as it considers appropriate; (j) determine priorities in the provision of legal assistance as between different classes of persons or classes of matters; (k) arrange for the provision of duty lawyer services at sittings in the Territory in such courts as it considers appropriate; (m) endeavour to secure the services of language interpreters, marriage counsellors and other appropriate persons to assist legally assisted persons in connection with matters in respect of which they are provided with legal assistance; -- 8 of 44 -- Part II Establishment and function of Legal Aid Commission Legal Aid Act 1990 5 (n) initiate and carry out educational programs designed to promote an understanding by the public (and by sections of the public having special needs in this respect) of their rights, powers, privileges and duties under the laws in force in the Territory. 9 Arrangements for provision of legal assistance by Commission (1) Without limiting the generality of section 7, legal assistance may be provided by the Commission by arranging for the services of a private legal practitioner to be made available at the expense of the Commission or by making available the services of officers. (2) The Commission shall determine guidelines for the allocation of work between officers and private legal practitioners and make the guidelines available to them. (3) Where the Commission provides legal assistance by making available the services of officers, the Commission shall pay disbursements and out-of-pocket expenses incurred in the course of providing that assistance. (4) Where the Commission provides legal assistance by arranging for the services of private legal practitioners, the Commission shall, except where the services are provided on a voluntary basis, pay fees to the private legal practitioners for the performance of those services (being fees determined by the Commission in accordance with section 30(8), (9) and (10)) and shall pay disbursements and out-of-pocket expenses properly incurred by them. 10 Financial assistance for assistance by voluntary bodies Subject to and in accordance with any agreement or arrangement between the Commonwealth and the Territory, the Commission may provide financial assistance to voluntary legal aid bodies in the Territory for the provision of legal assistance. 11 Commission may hold money on trust (1) The Commission may accept money or property on trust and may, in accordance with the Trustee Act 1893, act as trustee of money or other property held by it on trust. (2) The Commission shall hold money received by it on trust separate from other money held by the Commission. (3) Money held by the Commission on trust may be invested by the Commission in any manner in which trust funds may, for the time being, be invested under the Trustee Act 1893, but not otherwise. -- 9 of 44 -- Part II Establishment and function of Legal Aid Commission Legal Aid Act 1990 6 12 Guidelines for provision of assistance The Commission shall determine, and make known to the public, guidelines to be applied in: (a) the application of section 26 for the purposes of determining whether legal assistance may be provided to a person under this Act; (b) determining the conditions subject to which assistance referred to in section 28(1)(a) or (b) will be granted; (c) determining the extent (if any) to which the Commission will pay costs awarded against a legally assisted person in a proceeding; (d) determining the amount of costs or disbursements that will be required to be paid to the Commission under section 32 by a legally assisted person who has been successful in the proceeding in respect of which the legal assistance was provided; (e) determining the conditions (including conditions relating to the recovery of money by the Commission on a contingency basis) subject to which money in the Contingency Legal Aid Fund will be made available for the provision of legal assistance to bring or defend legal proceedings; and (f) determining an amount to be paid under section 33 towards costs an assisted person is directed to pay. 13 Professional conduct by officers of Commission (1) An officer, when practising as, or performing any of the functions of, a legal practitioner, in pursuance of this Act: (a) 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 his or her profession; and (b) 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 his or her profession. (2) The like privileges as those that arise from the relationship of client and solicitor acting in his or her professional capacity and in the course of his or her 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 an officer who -- 10 of 44 -- Part III Establishment and functions of Legal Aid Committees Legal Aid Act 1990 7 practices as, or performs any of the functions of, a legal practitioner for the person in pursuance of this Act. 14 Agreement between Commonwealth and Territory (1) The Territory may enter into an agreement with the Commonwealth for or in relation to: (a) the operation of the Commission; (b) the money to be made available by the Commonwealth or by the Territory and the Commonwealth, for the purposes of the provision of legal assistance; (c) the priorities to be observed, in relation to money made available by the Commonwealth, in the provision of legal assistance as between classes of persons, or classes of matters, or both; (d) the sharing of the operational costs incurred in the provision of legal assistance and other legal services by the Commission; and (e) any matter incidental to a matter mentioned in paragraph (a), (b), (c) or (d). (2) An agreement under subsection (1) shall, except in so far as it is inconsistent with this Act or the Regulations, be binding on the Commission. Part III Establishment and functions of Legal Aid Committees 15 Establishment of Committees Subject to and in accordance with the Regulations, there shall be such Legal Aid Committees as the Commission establishes in accordance with this Part. 16 Constitution of Committees (1) Each Legal Aid Committee shall consist of the Director and 3 other members. (2) The members of a Legal Aid Committee, other than the Director, shall be appointed by the Commission. (3) The Commission shall appoint as a member of a Legal Aid Committee one person who is not a lawyer. -- 11 of 44 -- Part IV Staff of Commission Legal Aid Act 1990 8 (4) The members of a Legal Aid Committee, other than the Director and the person appointed under subsection (3), shall be persons nominated by the Law Society. (5) Subject to subsection (6), the Director may appoint another officer to be his or her deputy, or may appoint other officers to be his or her deputies, in relation to the Director's membership of Legal Aid Committees. (6) In the event of the absence of the Director from a meeting of a Legal Aid Committee, the deputy of the Director or, if there is more than one deputy, one of the deputies, is entitled to attend that meeting and, while so attending, shall be deemed to be a member of the Committee. (7) The Commission may appoint a person to be the deputy of a member of a Legal Aid Committee other than the Director and, in the event of the absence of the member from a meeting of the Legal Aid Committee, the deputy is entitled to attend that meeting and, while so attending, shall be deemed to be a member of the Committee. 17 Functions of Committees The functions of a Legal Aid Committee are to decide: (a) applications for legal assistance coming before the Committee; and (b) any other matters coming before the Committee under this Act. Part IV Staff of Commission 18 Director (1) The Minister shall appoint a person to be the Director of Legal Aid who shall be charged with carrying out the decisions of the Commission and the general administration of the service of the Commission, including the administration of staff employment. (2) The Director shall: (a) be paid such salary, allowances and expenses; and (b) hold office on such terms and conditions, -- 12 of 44 -- Part IV Staff of Commission Legal Aid Act 1990 9 as the Minister, with the advice of the Commissioner, as defined in the Public Sector Employment and Management Act 1993, determines. (3) The Director, if he or she does not hold a current unrestricted practising certificate under the Legal Profession Act 2006, shall be deemed to hold such a certificate. (4) The salary, allowances and expenses payable to the Director are to be paid out of the Legal Aid Fund. 19 Acting Director (1) Where the Director is or is expected to be absent from duty or from the Territory or is, for any reason, unable to perform the duties of his or her office, or there is a vacancy in the office of the Director, the Chairman may appoint a person to act as the Director during the absence or until the vacancy is filled. (2) A person appointed under subsection (1) to act in the office of the Director, if he or she does not hold a current practising certificate under the Legal Profession Act 2006, shall be deemed to hold such a certificate. 19A Commission staff (1) The Commission may employ persons necessary to enable it to perform its functions and exercise its powers under this Act. (2) All salaries, allowances and expenses payable to an employee of the Commission are to be paid out of the Legal Aid Fund. 20 Rights, privileges and duties of officers An officer who is not the Director has all the rights, privileges and duties of a legal practitioner employed by a person who holds an unrestricted practising certificate under the Legal Profession Act 2006. 21 Signature of legal practitioner Where: (a) in a proceeding, a document is required or permitted to be signed by a legal practitioner for a party to the proceeding who is an assisted person; and (b) legal services are being provided to the assisted person in relation to the proceeding by an officer, -- 13 of 44 -- Part V Provision of legal assistance by Commission Legal Aid Act 1990 10 the signature of the Director or of an officer authorized in writing by the Director to sign documents on behalf of the Director for the purposes of this section shall be deemed to be the signature of a legal practitioner for that party. Part V Provision of legal assistance by Commission 22 Bringing services of Commission to public notice The Commission may, by public advertisement or otherwise, bring the services made available by the Commission to the attention of the public and any officer may, in the course of the performance of his or her duties, bring those services to the attention of the public or to the attention of particular persons. 23 Application for legal assistance (1) An application for legal assistance, other than legal assistance consisting of the giving of legal advice or the provision of duty lawyer services, shall: (a) be made to the Commission in writing and shall be substantially in accordance with a form approved by the Commission; and (b) contain such information as is required by that form. (2) The Commission may, in special circumstances, treat an application that does not comply with all the requirements of subsection (1) as having been duly made. (3) An applicant for legal assistance to which subsection (1) applies shall furnish to the Commission such declarations, certificates and other documents as the Commission requires for the purpose of enabling a decision to be made as to whether legal assistance should be granted in respect of the application. (4) Where legal advice is being provided to a person under this Act and it appears to an officer that the legal advice required by the person is likely to be of a substantial or continuing nature, the officer may require the person to make an application for legal assistance in accordance with subsections (1) and (3) and, where such a requirement is made, those subsections and sections 26(1), (2) and (3), 29 and 34(2) apply in relation to the application. (5) The Commission may distribute to private legal practitioners application forms for completion by persons applying for legal assistance. -- 14 of 44 -- Part V Provision of legal assistance by Commission Legal Aid Act 1990 11 24 Determination of application for legal assistance (1) An application for legal assistance shall, in accordance with the directions of the Commission, be decided by a Legal Aid Committee, by the Director or by an officer authorized by the Director to decide applications for legal assistance. (2) The Commission shall give directions as to the classes of cases in which: (a) applications for legal assistance are to be decided by a Legal Aid Committee; and (b) applications are to be decided by officers. (3) Where a Legal Aid Committee or an officer decides to grant an application for legal assistance, the Committee or officer shall also decide, in accordance with guidelines determined by the Commission in pursuance of sections 9(2) and 12: (a) whether the legal assistance should be provided by making available the services of a private legal practitioner or whether the legal assistance should be provided by making available the services of an officer; (b) the nature and extent of the legal assistance to be provided; and (c) whether the legal assistance is to be provided without charge or subject to either or both of the conditions referred to in section 29(1). (4) The Director shall ensure that each Legal Aid Committee is provided with such assistance as it requires to enable it to perform its functions under this Act. (5) For the purpose of deciding an application for legal assistance, a Legal Aid Committee or an officer may make such inquiries and obtain such advice (including the opinion of counsel) and reports as the Committee or officer considers desirable. (6) The cost of making inquiries under subsection (5) or obtaining such advice or reports shall be paid: (a) if the Committee or officer so determines – by the applicant for the legal assistance; or (b) in any other case – out of the Legal Aid Fund. -- 15 of 44 -- Part V Provision of legal assistance by Commission Legal Aid Act 1990 12 25 Termination or variation of legal assistance A decision to provide legal assistance to a person under this Act may be varied at any time so as to: (a) terminate the provision of the legal assistance; (b) alter the nature or extent of the legal assistance; (c) make the provision of the legal assistance subject to a condition in accordance with section 29; or (d) alter a condition to which the provision of the legal assistance is subject in accordance with section 29, and may be so varied: (e) in a case where the decision was made by a Legal Aid Committee – by such a Committee; or (f) in a case where the decision was made by an officer – by the Director or by an appropriate officer in accordance with arrangements made or approved by the Director. 26 Circumstances in which legal assistance may be provided (1) Subject to this section, legal assistance, other than legal assistance consisting of financial assistance from the Contingency Legal Aid Fund to bring or defend a civil proceeding, the giving of legal advice or the provision of duty lawyer services, may be provided to a person under this Act only if: (a) (i) the person is in need of assistance because the person is unable to afford the cost of obtaining from private legal practitioners the legal services in respect of which legal assistance is sought; and (ii) it is reasonable in all the circumstances to provide the legal assistance; or (b) pursuant to an agreement under section 14(1)(b) the Commonwealth agrees to reimburse the Territory the cost of providing legal assistance to the person. (2) In making a decision whether a person is in need of legal assistance because the person is unable to afford the cost of obtaining from private legal practitioners the legal services in respect of which the legal assistance is sought, regard shall be had to all relevant matters, including: -- 16 of 44 -- Part V Provision of legal assistance by Commission Legal Aid Act 1990 13 (a) the income of the person and of each person associated with the person; (b) the cash that is readily available to the person or can be made so available; (c) the debts, liabilities and other financial obligations of the person; (d) the cost of living; (e) the cost of obtaining the legal services from a private legal practitioner; and (f) any other matter affecting the ability of the person to meet the cost of obtaining the legal services from a private legal practitioner. (3) In making a decision whether it is reasonable in all the circumstances to provide assistance to a person, regard shall be had to all relevant matters, including: (a) the nature and extent of a benefit that may accrue to the person, to the public or to a section of the public from the provision of the assistance or of any detriment that may be suffered by the person, by the public or by a section of the public if the assistance is not provided; and (b) in the case of assistance in relation to a proceeding in a court – whether the proceeding is likely to terminate in a manner favourable to the person. (4) Legal assistance shall not be provided under this Act to a person who is not ordinarily resident in the Territory unless the assistance relates to: (a) a proceeding in a court in the Territory; or (b) a matter arising under a law in force in the Territory. (5) Legal assistance shall not be provided under this Act to a person in or in connection with a review by a Review Committee under Part VI. (6) A reference in subsection (2)(a) to a person who is associated with a person is a reference to: (a) the person's spouse or de facto partner; or -- 17 of 44 -- Part V Provision of legal assistance by Commission Legal Aid Act 1990 14 (b) a person who is financially responsible for, or who provides financial support to, that person. 27 Commission may assist person having interest adverse to Territory Legal assistance may be provided under this Act to a person in relation to a proceeding or matter notwithstanding that the interests of the person are, or may be, adverse to the interests of the Territory, the interests of an authority or body established for a public purpose by or under a law of the Territory or in the interests of a body corporate in which the Territory or such an authority or body has an interest. 28 Legal advice and duty lawyer services (1) Legal assistance provided under this Act, being legal assistance consisting of: (a) legal advice, other than legal advice mentioned in section 23(4); or (b) the provision of duty lawyer services, shall, subject to subsection (2), be provided without charge. (2) In special circumstances determined by the Commission, legal assistance to which subsection (1) applies may be provided subject to a condition that the person to whom the legal assistance is to be provided pays to the Commission a fixed charge determined by the Commission. (3) In special circumstances determined by the Commission, legal assistance mentioned in subsection (1) shall not be provided to a person. 29 Contribution towards costs and expenses (1) The granting under this Act of an application by a person for legal assistance, other than legal assistance to which section 28(1) applies, may be on the basis that the assistance will be provided without charge or may be subject to all or any of the following conditions: (a) a condition that the person pays to the Commission the full amount of, or a contribution of a specified amount or an amount to be specified towards, the cost to the Commission of providing the assistance; -- 18 of 44 -- Part V Provision of legal assistance by Commission Legal Aid Act 1990 15 (b) a condition that the person makes a payment or payments to the Commission in respect of any out-of-pocket expenses incurred, or to be incurred, by the Commission in providing the assistance; (c) a condition that the cost or part of the cost to the Commission of providing assistance be secured: (i) by a charge under section 59 over any land or a charge over any other property which is recovered or preserved for that person in the proceedings; or (ii) in any other manner the Commission thinks fit over any property in which the person has an interest or in which the person acquires an interest during the period of assistance. (2) The Commission shall advise the applicant in writing before imposing a condition under subsection (1)(c) on the provision of legal assistance. (3) An amount required to be paid or secured by an assisted person under this section shall be paid or secured in such manner and within such time as the Commission directs. (4) If a person who is or has been a legally assisted person has not paid an amount payable by the person to the Commission under this section, the amount is recoverable by the Commission as a debt due and payable to the Commission. 30 Arranging for services of private legal practitioners (1) For the purpose of facilitating arrangements for the services of private legal practitioners to be made available to legally assisted persons, the Commission shall cause to be prepared and maintained, and to be made available to Legal Aid Committees, a list of private legal practitioners who have notified the Commission that they are willing to act as legal practitioners on behalf of legally assisted persons, whether generally, in particular classes of matters or in particular courts. (2) Subject to this section, the Commission may: (a) refuse to include in the list maintained under subsection (1) the name of a private legal practitioner who has notified the Commission that he or she is willing to act as a legal practitioner on behalf of legally assisted persons; (b) remove the name of a private legal practitioner from the list maintained under subsection (1); or -- 19 of 44 -- Part V Provision of legal assistance by Commission Legal Aid Act 1990 16 (c) include the name of a private legal practitioner in that list together with limitations as to the classes of matters in which the services of the private practitioner will be sought by the Commission for the purposes of this Act. (3) The Commission shall not refuse to include the name of a private legal practitioner in the list maintained under subsection (1), remove the name of a private legal practitioner from that list or include in that list limitations as to the classes of matters in which the services of a private legal practitioner will be sought by the Commission for the purposes of this Act, unless the Commission has: (a) given written notice to the practitioner setting out the reasons for the proposed refusal, removal or limitation; and (b) afforded the practitioner a reasonable opportunity to be heard in relation to the proposed refusal, removal or limitation. (4) Where the Commission has: (a) refused to include the name of a practitioner in the list maintained under subsection (1); (b) removed the name of a practitioner from that list; or (c) included in that list, in relation to a practitioner, a limitation as mentioned in subsection (2)(c), the practitioner may, before the expiration of 3 months (or where another period is prescribed for that purpose, the expiration of that other period) after receipt of the notice given to him under subsection (3), apply to the Supreme Court for an order directing the Commission to include his or her name in the list, to restore his or her name in the list or to remove the limitation, as the case may be. (5) Where an application is made under subsection (4) to the Supreme Court, the Court may: (a) make the order applied for; (b) postpone the making of the order applied for with liberty to apply; or (c) dismiss the application, and, subject to subsection (6), the decision of the Court is final and conclusive. -- 20 of 44 -- Part V Provision of legal assistance by Commission Legal Aid Act 1990 17 (6) Where an application (including a further application made in pursuance of a previous application of this subsection) is dismissed, the applicant may, at any time after the expiration of 3 months (or where another period is prescribed for that purpose, the expiration of that other period) after the date of the dismissal, make a further application for an order as mentioned in subsection (4), and subsection (5) applies in relation to any such further application. (7) In selecting a private legal practitioner whose services may be sought to be made available to an assisted person in a particular case, the paramount considerations shall be the interest of the assisted person and any choice expressed by the person for the services of a particular practitioner but, subject to those considerations, work shall be allocated among the practitioners whose names are on the list maintained under subsection (11) in a manner that is equitable having regard to the nature of their legal practices and their expertise in particular fields of law. (8) In determining the fees to be offered to private legal practitioners for the performance of services on behalf of assisted persons, the Commission shall consult and take into account the views of the Law Society and, where it considers it appropriate, the body known as the Northern Territory Bar Association. (9) Subject to subsection (8), the fees to be offered to private legal practitioners for the performance of services on behalf of assisted persons shall, so far as practicable, consist of fixed amounts in respect of the performance of particular services and be less than the ordinary professional cost of those services. (10) The Director may, in such classes of cases as the Commission determines, refer to a Legal Aid Committee accounts from private legal practitioners in respect of fees, disbursements or out-of- pocket expenses in connection with the provision of legal assistance for the purpose of determining whether the amounts claimed are properly payable. (11) The Commission shall maintain a record containing particulars of the number and type of matters dealt with by specified private legal practitioners under this Act and shall make the record available for inspection on request by the Law Society. -- 21 of 44 -- Part V Provision of legal assistance by Commission Legal Aid Act 1990 18 (12) The Commission may defer payment of fees payable by it to a private legal practitioner in connection with proceedings in respect of which legal assistance has been granted until: (a) the Commission is satisfied that the practitioner has taken reasonable steps to recover party and party costs to which the assisted person is entitled; (b) the conclusion of any investigation in relation to an alleged: (i) breach of this Act or the Legal Profession Act 2006 by the practitioner; (ii) fraud or misrepresentation by the practitioner in relation to the provision of legal assistance or any such fraud or misrepresentation to which the practitioner is a party; or (iii) improper action by the practitioner in bringing, defending or conducting proceedings in relation to which legal aid has been provided or any such action to which the practitioner is a party; or (c) the completion of any criminal or disciplinary proceedings commenced against the practitioner in respect of a matter referred to in paragraph (b). (13) Without affecting any other power of the Commission to refuse payment of fees, the Commission may refuse to make a payment of fees to a private legal practitioner in connection with proceedings in respect of which legal assistance has been granted if an allegation referred to in subsection (12)(b) against the practitioner is substantiated in criminal or disciplinary proceedings. 31 Prohibition of additional payments to private practitioners Where a private legal practitioner performs, or has performed, legal services on behalf of an assisted person the practitioner shall not demand, take or accept payment for performing the services in respect of which the legally assisted person is receiving, or has received, legal assistance under this Act other than the payment or payments to which he or she is entitled under this Act. 32 Entitlement of assisted persons to costs in proceedings (1) For the purposes of the making or enforcement of an order for costs, or the determination of an entitlement to costs, in a proceeding before a court to which an assisted person is a party, the person shall be deemed to be liable to pay the ordinary professional costs of the legal services provided to the person or in connection with the proceeding and any disbursements and -- 22 of 44 -- Part V Provision of legal assistance by Commission Legal Aid Act 1990 19 out-of-pocket expenses incurred in or in connection with the provision of those services. (2) Where an amount is recoverable by an assisted person (whether in a proceeding or by virtue of a settlement or compromise) in respect of the matter in which the legal assistance was given, the person is liable to pay to the Commission: (a) in the case of an amount recoverable in a civil proceeding in respect of which legal assistance comprising financial assistance from the Contingency Legal Aid Fund was provided: (i) an amount up to the value of that financial assistance; and (ii) such proportion of that amount recoverable, as was agreed to be paid by the assisted person as a condition subject to which the legal assistance was made available; and (b) in any other case – an amount equal to so much of the amount as the Director, having regard to guidelines determined by the Commission in pursuance of section 12(d), determines. (3) In determining the amount that an assisted person to whom subsection (2)(b) relates is liable to pay under subsection (2), the Director shall have regard to: (a) the amount actually recovered by the assisted person; and (b) any failure by the assisted person to take action to recover the amount recoverable, including a failure to comply with a direction of the Director under subsection (4). (4) The Director may give directions to an assisted person requiring the person to take specific action to recover an amount that is recoverable by the person in respect of the matter in which legal assistance was given. (5) If an amount is recoverable by an assisted person (whether in a proceeding or by virtue of a settlement or compromise) in respect of the matter in which the legal assistance was given, the Director may, by writing signed by the Director, direct the assisted person to assign his or her right to recover the amount to the Commission within 3 months (or where another period is prescribed for that purpose, the expiration of that other period) after the day on which the direction is given. -- 23 of 44 -- Part V Provision of legal assistance by Commission Legal Aid Act 1990 20 (6) Where an assisted person fails to comply with a direction under subsection (5), the person shall be deemed to have assigned to the Commission his or her right to recover the amount at the expiration of the period referred to in that subsection and, for the purpose of recovering the amount, the Commission shall stand in place of the person and may use all the remedies and, if necessary, the name, of the person in any proceeding to recover the amount. (7) The amount that a person is liable to pay to the Commission under subsection (2) is recoverable by the Commission as a debt due and payable to it. 33 Payment by Commission of costs awarded against assisted persons (1) Where: (a) legal assistance (other than financial assistance from the Contingency Legal Aid Fund to bring or defend a civil proceeding) is provided under this Act to a person in relation to a proceeding (other than a cross-proceeding) instituted by the person in a court; and (b) the court makes an order in the proceeding directing the assisted person to pay costs incurred by another party to the proceeding, either the assisted person or the other party may request the Commission to pay to the other party on behalf of the assisted person an amount representing the whole or a part of the costs that the assisted person was so directed to pay. (2) A request under subsection (1) shall be decided, in accordance with guidelines under section 12(c): (a) if the question whether legal assistance should be granted in relation to the proceeding was decided by an officer – by an officer; or (b) if the question was decided by a Legal Aid Committee – by a Legal Aid Committee. (3) Subject to subsection (4), the Commission shall pay so much (if any) of the amount requested to be paid as the officer or the Legal Aid Committee, as the case may be, considers just and equitable for the Commission to pay. (4) The Commission shall not pay an amount in respect of costs incurred in a proceeding at first instance except in accordance with guidelines under section 12(f). -- 24 of 44 -- Part VI Reconsideration and review of decisions Legal Aid Act 1990 21 (5) An amount paid by the Commission under this section shall be deemed to have been paid by the assisted person. 34 Notification of decisions (1) Where a decision under this Act in relation to the provision of legal assistance or to the making of a payment in respect of costs, including a decision reconsidering or reviewing a previous decision, is made by an officer or by a Legal Aid Committee, the Commission shall, as soon as practicable after the decision is made, communicate the decision to the person who applied for the legal assistance or for the payment. (2) Where a decision referred to in subsection (1) is a decision refusing to provide, or imposing a condition on the provision of, legal assistance under this Act, the Commission, if requested to do so, shall cause to be furnished to the person a short statement of the reasons for the decision. (3) The communication to a person of a decision referred to in subsection (1), other than a decision in relation only to the provision of legal advice or duty lawyer services, shall be effected: (a) where the matter to which the decision relates was dealt with on behalf of the person by a practitioner – by giving to the practitioner, or by sending to the practitioner by post to the address of the practitioner last known to the Commission, a document setting out the terms of the decision and particulars of the right of the person to have the decision reconsidered and reviewed in accordance with section 35; and (b) in any other case – by giving such a document to the person or by sending it to the person: (i) by post to the address of the person last known to the Commission; or (ii) in any other way authorized by the person. Part VI Reconsideration and review of decisions 35 Reconsideration of decisions (1) Where a decision has been made: (a) refusing to provide legal assistance under this Act; (b) refusing to provide legal assistance under this Act of the nature, or to the extent, applied for; -- 25 of 44 -- Part VI Reconsideration and review of decisions Legal Aid Act 1990 22 (c) imposing a condition on the provision of legal assistance under this Act or varying adversely to a legally assisted person a condition so imposed; (d) terminating the provision of legal assistance under this Act; (e) refusing to pay the whole or a part of an amount that the Commission has been requested to pay under section 33; or (f) in relation to any other matter relating to the provision or refusal of legal assistance, the person who applied for the legal assistance or for the payment may, by notice in writing to the Commission, request that the decision be reconsidered. (2) Where a notice requesting that a decision be reconsidered is received by the Commission, the decision shall be reconsidered: (a) where the decision was made by a Legal Aid Committee – by the Committee; or (b) where the decision was made by an officer – by an appropriate officer in accordance with arrangements made or approved by the Director, and may be confirmed or varied. (3) Where a decision is confirmed or varied following a reconsideration under subsection (2), the person who requested the reconsideration may, by notice in writing to the Commission, request the Commission to refer the decision, or the decision as varied, as the case may be, to a Review Committee for review and the Commission shall comply with the request. (4) A request by a person for a reconsideration or review of a decision shall be made before the expiration of 3 months after the person received notice of the relevant decision or such longer period as the Commission, in special circumstances, allows. 36 Establishment and constitution of Review Committees (1) Subject to and in accordance with the Regulations, there shall be such Review Committees as the Commission establishes in accordance with this Part. (2) A Review Committee shall consist of: (a) a private legal practitioner; -- 26 of 44 -- Part VI Reconsideration and review of decisions Legal Aid Act 1990 23 (b) an officer; and (c) a person, (not being a private legal practitioner or an officer) who has qualifications or experience relevant to the performance of the function of a Review Committee. 37 Appointment of members of Review Committee (1) The members of a Review Committee shall be appointed by the Commission. (2) The Commission shall appoint a member of each Review Committee to be Chairman of that Committee. (3) The Commission may appoint as a deputy a member of a Review Committee: (a) in the case of a member referred to in section 36(2)(a) – a private legal practitioner; (b) in the case of a member referred to in section 36(2)(b) – an officer; and (c) in the case of a member referred to in section 36(2)(c) – a person (not being a private legal practitioner or an officer) who has qualifications or experience relevant to the performance of the function of a Review Committee. (4) In the event of the absence of a member of a Review Committee from a meeting of the Review Committee, the deputy of the member is entitled to attend the meeting and while so attending shall be deemed to be a member. 38 Function of Review Committee (1) The function of a Review Committee is to review decisions referred to the Committee under section 35(3). (2) In making a decision on a matter referred to it, a Review Committee shall have regard to the amount of funds available to the Commission for the provision of legal assistance, the nature and extent of legal assistance that has been provided from those funds and the nature and extent of the legal assistance that the Commission is likely to be required to provide in the future. -- 27 of 44 -- Part VI Reconsideration and review of decisions Legal Aid Act 1990 24 39 Person requesting review to have opportunity to be heard A Review Committee that reviews a decision referred to in section 35(3) shall not make a decision on the review unless it has afforded to the person who requested the review a reasonable opportunity to: (a) attend a meeting of the Review Committee; (b) address the Review Committee in relation to the review; and (c) place before the Committee documents relevant to the review. 40 Power of Review Committees to obtain information and documents A Review Committee may request the Director or another officer of the Commission to: (a) furnish to the Committee any information known to him or her, or to which he or she has access, that relates to a decision being reviewed by the Committee; (b) produce to the Committee any document in his or her custody or control that relates to a decision being reviewed by the Committee; or (c) furnish to the Committee any information relating to the amount of the funds available to the Commission for the provision of legal assistance, the nature and extent of the legal assistance that has been provided from those funds and the nature and extent of the legal assistance that the Commission is likely to be requested to provide in the future, and that person shall provide the information or produce the documents requested. 41 Decision of Review Committee (1) A Review Committee that reviews a decision of an officer or of a Legal Aid Committee referred to it under section 35(3) (in this section referred to as a primary decision) shall give a decision in writing: (a) confirming the primary decision; (b) varying the primary decision; or (c) setting aside the primary decision and making a decision in substitution for the primary decision. -- 28 of 44 -- Part VII Finances of Commission Division 1 Accountability and reporting Legal Aid Act 1990 25 (2) A primary decision as varied by a Review Committee, or a decision made by a Review Committee in substitution for a primary decision, shall, for the purposes of this Act (other than section 35(3)), be deemed to be a decision made by the officer who, or the Legal Aid Committee which, made the primary decision. (3) A Review Committee shall cause a copy of its decision to be sent to the person who requested the review and to the Commission. (4) A Review Committee shall, if asked to do so by the person who requested the review, cause a short statement in writing of the reasons for the decision to be sent to the person. (5) The decision of a Review Committee shall be final and conclusive. Part VII Finances of Commission Division 1 Accountability and reporting 42 Audit Act 1995 to apply The Audit Act 1995 applies to and in relation to: (a) the Commission – as if a reference in that Act to an Agency were a reference to the Commission; and (b) the Director – as if a reference in that Act to an Accountable Officer were a reference to the Director. 42A Financial responsibilities of Director (1) The Director is responsible for the financial administration of the Commission. (2) The Director must ensure that: (a) proper records of all transactions affecting the Commission are kept; (b) employees of the Commission observe the requirements imposed by or under this Act in relation to financial matters; and (c) procedures that ensure proper internal control of financial matters of the Commission are in place. (3) The Director must ensure that the Commission has an adequate internal audit capacity. -- 29 of 44 -- Part VII Finances of Commission Division 1 Accountability and reporting Legal Aid Act 1990 26 42B Accounting and property manual to be kept (1) The Commission must issue and maintain an accounting and property manual for the use of the Director and employees of the Commission. (2) The accounting and property manual is to include: (a) information about and an explanation of legislation that governs the operation of the Commission; (b) information about and an explanation of agreements that govern the operation of the Commission; and (c) information about, explanations of and directions as to the management and control of the assets of the Commission. (3) A copy of, or in an appropriate case, an extract from the accounting and property manual is to be made available to the Director and each employee of the Commission. (4) The accounting and property manual is to be complied with by the Director and each employee of the Commission. 42C Annual financial statements (1) The Director must prepare a financial statement relating to each financial year. (2) The financial statement is to be prepared: (a) within 3 months after the end of the financial year to which it relates; or (b) within another period, after the end of the financial year, determined by the Treasurer. (3) The financial statement: (a) is to be prepared in the form the Treasurer directs; and (b) except to the extent that the Treasurer directs otherwise – is to be a general purpose financial report prepared in accordance with the Australian Accounting Standards determined by the Australian Accounting Standards Board. (4) The Director must provide a copy of the financial statement to the Auditor-General. (5) The Auditor-General must audit the statement provided under subsection (4). -- 30 of 44 -- Part VII Finances of Commission Division 1 Accountability and reporting Legal Aid Act 1990 27 (6) The Auditor-General must, before 2 months after receiving the statement provided under subsection (4) or another period determined by the Administrator: (a) report on the statement to the Minister; and (b) provide a copy of the report to the Director. 42D Annual reports (1) The Commission must provide a report to the Minister on the operations of the Commission during each financial year. (2) The report is to contain information about: (a) the organisation of the Commission, including the number of employees at each salary level or salary range in the Commission and any variation in those numbers since the last report; (b) the Commission's operations, initiatives and achievements (including those relating to planning, efficiency, effectiveness and performance and, where appropriate, delivery of services to the community); (c) the financial planning and performance of the Commission; (d) equal opportunity management programs and other initiatives designed to ensure that employees employed in the Commission have equal employment opportunities; (e) management training and staff development programs in the Commission; and (f) occupational health and safety programs in the Commission. (3) The report is to include: (a) the financial statement prepared under section 42C; and (b) the report provided to the Director under section 42C(6)(b), in relation to the financial year. (4) The report is to be provided to the Minister: (a) within 6 months after the end of the financial year to which it relates; or (b) within a longer period determined by the Treasurer. -- 31 of 44 -- Part VII Finances of Commission Division 2 Funds of the Commission Legal Aid Act 1990 28 (5) The Minister must table a copy of the report in the Legislative Assembly within 6 sitting days after he or she receives the report. Division 2 Funds of the Commission 43 Establishment of Legal Aid Fund (1) There is established by this section a fund to be known as the Legal Aid Fund. (2) The Fund shall consist of: (a) money paid to, or recovered by, the Commission under this Act (other than money received or held by the Commission on trust); (b) money paid to the Commission, being money appropriated by the Parliament of the Territory or the Commonwealth for the purposes of the Commission; (c) other money paid to the Commission for the purposes of the provision of legal assistance or otherwise for the purposes of the Fund; and (d) income derived from the investment of money forming part of the Fund. (3) The Legal Aid Fund shall be controlled and administered by the Commission. 44 Establishment of Contingency Legal Aid Fund (1) There is established by this section a fund to be known as the Contingency Legal Aid Fund. (2) The Contingency Legal Aid Fund shall consist of money paid or lent to it by any person. (3) The Contingency Legal Aid Fund shall be controlled and administered by the Commission. 45 Application of funds (1) Money in the Legal Aid Fund shall be applied only: (a) in the discharge of obligations and liabilities of the Commission arising under this Act; (b) in the payment of remuneration and allowances payable under this Act; and -- 32 of 44 -- Part VIII Administrative provisions relating to Commission Legal Aid Act 1990 29 (c) as a loan or payment to the Contingency Legal Aid Fund. (2) Money in the Contingency Legal Aid Fund shall be applied only: (a) to provide legal assistance to bring or defend a civil proceeding, including the provision of such assistance by officers; or (b) to repay money lent to it by the Legal Aid Fund together with interest, if any, charged on the money. (3) Money standing to the credit of either Fund may be invested by the Commission in any manner in which trust funds may, for the time being, be invested under the Trustee Act 1893, but not otherwise. (4) The Commission may authorize the Treasurer to invest money standing to the credit of either Fund on its behalf and the Treasurer may invest that money accordingly. 46 Limitation of liability of Contingency Legal Aid Fund Notwithstanding anything in this Act, the liability of the Commission in relation to assistance to be made available from the Contingency Legal Aid Fund shall not exceed the amount from time to time standing to the credit of that Fund. Part VIII Administrative provisions relating to Commission 47 Tenure of office Subject to this Part, a Commissioner other than the Director or a person appointed under section 51A to act in the place of a Commissioner, holds office for such period, not exceeding 3 years, as is specified in the instrument of appointment, but is eligible for re-appointment. 48 Qualifications for appointment A person is not eligible for appointment as the Chairman of the Commission unless the person is: (a) a Supreme Court Judge or Local Court Judge; or (b) a lawyer who has been admitted to the legal profession for at least 5 years. -- 33 of 44 -- Part VIII Administrative provisions relating to Commission Legal Aid Act 1990 30 49 Resignation A Commissioner, other than the Director or a person appointed under section 51A to act in the place of a Commissioner, may resign office by writing signed by him or her delivered to the Minister. 50 Removal from office (1) The Minister may remove a Commissioner, other than the Director or a person appointed under section 51A to act in the place of a Commissioner, from office for misbehaviour or physical or mental incapacity. (2) If a Commissioner, other than the Director or a person appointed under section 51A to act in the place of a Commissioner: (a) becomes bankrupt, applies to take the benefit of any law for the relief of bankrupt or insolvent debtors, compounds with his or her creditors or makes an assignment of his or her remuneration for their benefit; (b) is absent, except by leave of the Commission, from 3 consecutive meetings of the Commission; or (c) fails to comply with his or her obligations under section 53, the Minister shall remove the Commissioner from office. 51 Acting Chairman of Commission (1) The Minister may appoint a Commissioner who is eligible for appointment as Chairman to act in the office of Chairman where: (a) there is a vacancy in the office, whether or not an appointment has previously been made to the office; or (b) the Chairman is, or is expected to be, absent from duty or from the Territory or is, for any reason, unable to perform the duties of his or her office. (2) The Minister may at any time terminate an appointment under this section. (3) A person appointed to act in the office of Chairman may resign the appointment by writing signed by him or her delivered to the Minister. (4) The validity of anything done by a person acting in the office of Chairman shall not be called in question on the ground that the -- 34 of 44 -- Part VIII Administrative provisions relating to Commission Legal Aid Act 1990 31 occasion for his or her appointment had not arisen or that the appointment had ceased to have effect or that the occasion for the person to act had not arisen or had ceased. 51A Regional representatives of staff-elected Commissioner (1) The Commission may appoint a member of the staff of the Commission employed at a place outside Darwin to act at a meeting of the Commission in the place of the Commissioner appointed under section 6(1)(f). (2) A person appointed under subsection (1) may, with the consent of the Commissioner appointed under section 6(1)(f), act in the place of the Commissioner at a meeting of the Commission. (3) The Commission may at any time terminate an appointment under subsection (1). (4) A person appointed under subsection (1) may resign from the appointment at any time by writing signed by him or her delivered to the Commission. 52 Meetings (1) Subject to subsection (2), the Chairman shall call such meetings of the Commission as are necessary for the performance of the functions of the Commission. (2) The Chairman shall call a meeting of the Commission if requested in writing to do so by 3 Commissioners. (3) The Chairman shall preside at all meetings of the Commission at which he or she is present. (4) If the Chairman is not present at a meeting of the Commission, the Commissioners present shall elect one of their number to preside at the meeting. (5) At a meeting of the Commission: (a) 4 Commissioners constitute a quorum; (b) questions arising shall be determined by a majority of the votes of the Commissioners present and voting and in the event of an equality of votes the person presiding at the meeting shall have a casting vote in addition to his or her deliberative vote; and (c) subject to this Act, the Commission shall determine the procedure to be followed at or in connection with the meeting. -- 35 of 44 -- Part IX Miscellaneous Legal Aid Act 1990 32 (6) The Commission shall cause minutes to be kept of its meetings. 53 Interests to be disclosed (1) A Commissioner who has a direct or indirect pecuniary interest in a matter being considered or about to be considered by the Commission, otherwise than as a member of, and in common with the other members of, an incorporated company which consists of more than 25 persons and of which he or she is not a director, shall, as soon as possible after the relevant facts have come to his or her knowledge, disclose the nature of his or her interest at a meeting of the Commission. (2) A disclosure under subsection (1) shall be recorded in the minutes of the meeting of the Commission and the Commissioner shall not be present during any deliberation of the Commission in relation to that matter. Part IX Miscellaneous 54 Delegation (1) The Commission, Minister or Director may, by instrument in writing, delegate to a person any of its or his or her powers and functions under this Act, other than this power of delegation. (2) A power or function delegated under this section, when exercised or performed by the delegate, shall, for the purpose of this Act, be deemed to have been exercised or performed by the Commission, Minister or Director, as the case may be. (3) A delegation under this section does not prevent the exercise of a power or the performance of a function by the Commission, Minister or Director. 55 Secrecy (1) This section applies to: (a) every person who is or has been a Commissioner, an officer or other person employed in the service of the Commission, a member of a Legal Aid Committee, a member of a Review Committee; and (b) any person who has performed any function in relation to this Act under the Financial Management Act 1995 or the Audit Act 1995. -- 36 of 44 -- Part IX Miscellaneous Legal Aid Act 1990 33 (2) A person to whom this section applies shall not, either directly or indirectly, except for the purpose of this Act: (a) make a record of, or divulge or communicate to a person, any information concerning the affairs of another person acquired by him or her by reason of his or her office or employment under or for the purposes of this Act or in the performance of a function under this Act; or (b) produce to a person a document relating to the affairs of another person furnished for the purposes of this Act. Maximum penalty: 17 penalty units or imprisonment for 6 months. (3) Subject to sections 18 to 21 inclusive of the Audit Act 1995, a person to whom this section applies shall not be required to produce before a court a document relating to the affairs of another person of which he or she has the custody or to which he or she has access, by virtue of his or her office or employment under or for the purposes of this Act or in the performance of a function under this Act, or to divulge or to communicate to a court any information concerning the affairs of another person obtained by him or her by reason of such an office or employment or in the performance of such a function. (3A) Subsections (2) and (3) do not apply to: (a) an investigation undertaken in respect of the commission of an offence against this Act or proceedings for an offence against this Act; (b) a proceeding under Chapter 4 of the Legal Profession Act 2006, including a proceeding initiated by the Commission in respect of the professional conduct of a private legal practitioner whose services have been made available under this Act to legally assisted persons; or (c) proceedings brought by the Commission under section 29 or 32 to recover money payable to the Commission. (4) Subsection (3) does not apply if the court considers that it is necessary in the interests of justice that the document be produced or the information be divulged or communicated. (5) This section does not affect any law or rule of practice or procedure relating to the discovery of documents in a proceeding in respect of which legal assistance is provided to a person under this Act. (6) In this section, court includes a tribunal. -- 37 of 44 -- Part IX Miscellaneous Legal Aid Act 1990 34 56 Liabilities of Commission (1) The Commission has the same liability for acts or omissions by an officer in the course of the performance of the officer's duties as a master has for acts or omissions of his or her servants. (2) A member of the Commission, of a Legal Aid Committee or of a Review Committee is not liable for any act or omission of the member, of the Commission, or of the Committee of which he or she is a member, if the act was done, or the omission occurred, in good faith in the performance of a function under this Act. 57 False or misleading statements (1) A person shall not: (a) make, whether orally or in writing, a false or misleading statement in connection with, or in support of, an application for legal assistance; or (b) furnish to the Commission in connection with an application for legal assistance a document that is false or misleading in a material particular. Maximum penalty: 17 penalty units. (2) Where: (a) a person is found guilty of an offence against subsection (1) in respect of an application for legal assistance; (b) legal assistance under this Act was granted on the application; and (c) the Commission incurred expenses in providing the legal assistance, the court may, in addition to imposing a penalty in respect of the offence, order the person to pay to the Commission an amount equal to the amount of those expenses incurred by the Commission. (3) For the purposes of subsection (2), a certificate in writing signed by the Director, or by a person acting in the office of Director, certifying that the Commission incurred expenses of an amount specified in the certificate in providing legal assistance on an application identified in the certificate is prima facie evidence of the matters stated in the certificate. -- 38 of 44 -- Part IX Miscellaneous Legal Aid Act 1990 35 58 Certificate as to amounts owing to Commission In an action against a person for the recovery of an amount payable to the Commission under section 29 or 32, a certificate in writing signed by the Director, or by a person acting in the office of Director, certifying that the amount specified in the certificate was, at the date of the certificate, payable by the first-mentioned person to the Commission under that section is prima facie evidence of the matters stated in the certificate. 59 Costs may be charged on land (1) Any amount required to be paid to the Commission by an assisted person which is subject to a condition under section 29(1)(c)(i) is, on and from the lodging of the relevant application referred to in subsection (2) until paid or recovered, a statutory charge within the meaning of the Land Title Act 2000, for the benefit of the Legal Aid Fund on any land which is recovered or preserved for the assisted person in the proceedings. (2) The Director may, in the name and on behalf of the Commission, apply under section 86 of the Land Title Act 2000 to have the charge registered. (5) When: (a) the amount charged is paid or recovered; (b) payment of the amount charged is waived by the Commission; or (c) the amount charged is otherwise secured, the Director shall request the Registrar-General to cancel the registration of the charge and the Registrar-General shall comply with the request. (6) If land is charged under this section, the Registrar-General shall not register a transfer or mortgage of that land without the consent of the Director. (7) Stamp duty is not payable on a notice lodged under this section. 60 Regulations The Administrator may make regulations, not inconsistent with this Act, prescribing matters: (a) required or permitted by this Act to be prescribed; or -- 39 of 44 -- Part X Transitional Legal Aid Act 1990 36 (b) necessary or convenient to be prescribed for carrying out or giving effect to this Act. Part X Transitional 61 Definitions In this Part: Australian Legal Aid Office means that part of the Office of Legal Aid Administration Division of the Attorney-General's Department of the Commonwealth that is designated the Australian Legal Aid Office and that operates in the Territory. eligible person means a person employed in the Australian Legal Aid Office. 62 Legal aid provided by Australian Legal Aid Office (1) An application for legal aid made to the Australian Legal Aid Office which has not been determined immediately before the commencement of this Act shall be deemed to be an application under section 23. (2) Where, before the commencement of this Act, the Australian Legal Aid Office was performing services on behalf of a person by way of legal aid, then, as from that commencement, the services shall, so far as is necessary, continue to be performed on behalf of the person by the Commission. (3) A private legal practitioner who, immediately before the commencement of this Act, was acting for a person in a matter in the course of the operations of the Australian Legal Aid Office shall, in respect of that matter, be deemed to be a private legal practitioner to whom the Commission has assigned work under this Act. (4) Services: (a) performed on or after the commencement of this Act by the Commission on behalf of a person under subsection (2); or (b) carried out on or after the commencement of this Act by a private legal practitioner under subsection (3), -- 40 of 44 -- Part X Transitional Legal Aid Act 1990 37 shall, notwithstanding anything to the contrary in this Act, be performed or carried out subject to any conditions attached to, and the policies of the Australian Legal Aid Office in relation to, the performance or carrying out of the services before that commencement. (5) For the purposes of subsection (4), the Commission shall be deemed to stand in the place of and shall have all or any of the rights, duties and obligations of the Australian Legal Aid Office in respect of the performance or carrying out of the services referred to in that subsection before the commencement of this Act. (6) On and from the commencement of this Act, the Director shall be deemed to be the solicitor for a person in any proceeding in a court, or in any other matter, in which an officer or employee of the Australian Legal Aid Office was acting in the course of the operations of that Office as the solicitor for the person immediately before that commencement. 64 Validation An agreement entered into before the commencement of this Act, and anything done before that commencement in accordance with any such agreement, that would have been valid if entered into or done after that commencement is validated. -- 41 of 44 -- ENDNOTES Legal Aid Act 1990 38 ENDNOTES 1 KEY Key to abbreviations amd = amended od = order app = appendix om = omitted bl = by-law pt = Part ch = Chapter r = regulation/rule cl = clause rem = remainder div = Division renum = renumbered exp = expires/expired rep = repealed f = forms s = section Gaz = Gazette sch = Schedule hdg = heading sdiv = Subdivision ins = inserted SL = Subordinate Legislation lt = long title sub = substituted nc = not commenced 2 LIST OF LEGISLATION Legal Aid Act 1990 (Act No. 30, 1990) Assent date 11 June 1990 Commenced 1 July 1990 (Gaz S40, 29 June 1990) Legal Aid Amendment Act 1992 (Act No. 75, 1992) Assent date 14 December 1992 Commenced 14 December 1992 Public Sector Employment and Management (Consequential Amendments) Act 1993 (Act No. 28, 1993) Assent date 30 June 1993 Commenced 1 July 1993 (s 2, s 2 Public Sector Employment and Management Act 1993 (Act No. 11, 1993) and Gaz S53, 29 June 1993) Statute Law Revision Act (No. 2) 1993 (Act No. 70, 1993) Assent date 9 November 1993 Commenced 9 November 1993 Real Property (Statutory Charges Consequential Amendments) Act 1993 (Act No. 77, 1993) Assent date 23 November 1993 Commenced 1 October 1994 (s 2, s 2 Real Property Amendment Act (No. 2) 1993 (Act No. 76, 1993) and Gaz G37, 14 September 1994, p 2) Financial Management (Consequential Amendments) Act 1995 (Act No. 5, 1995) Assent date 21 March 1995 Commenced 1 April 1995 (s 2, s 2 Financial Management 1995 (Act No. 4, 1995) and Gaz S13, 31 March 1995) -- 42 of 44 -- ENDNOTES Legal Aid Act 1990 39 Sentencing (Consequential Amendments) Act 1996 (Act No. 17, 1996) Assent date 19 April 1996 Commenced s 7: 19 April 1996; rem: 1 July 1996 (s 2, s 2 Sentencing Act 1995 (Act No. 39, 1995) and Gaz S15, 13 June 1996) Legal Aid Amendment Act 1998 (Act No. 78, 1998) Assent date 21 October 1998 Commenced 1 January 1999 (Gaz G45, 18 November 1998, p 4) Legal Aid Amendment Act 1999 (Act No. 63, 1999) Assent date 14 December 1999 Commenced 1 February 2000 (Gaz G1, 12 January 2000, p 6) Land Title (Consequential Amendments) Act 2000 (Act No. 45, 2000) Assent date 12 September 2000 Commenced 1 December 2000 (s 2, s 2 Land Title Act 2000 (Act No. 2, 2000) and Gaz G38, 27 September 2000, p 2) Statute Law Revision Act (No. 2) 2001 (Act No. 62, 2001) Assent date 11 December 2001 Commenced 11 December 2001 Justice Legislation Amendment Act (No. 2) 2006 (Act No. 35, 2006) Assent date 3 November 2006 Commenced 3 November 2006 Legal Profession (Consequential Amendments) Act 2007 (Act No. 7, 2007) Assent date 17 May 2007 Commenced s 10: 1 July 2007 (Gaz G26, 27 June 2007, p 3); rem: 17 May 2007 Justice Legislation Amendment (Penalties) Act 2010 (Act No. 12, 2010) Assent date 20 May 2010 Commenced 1 July 2010 (Gaz G24, 16 June 2010, p 2) Local Court (Related Amendments) Act 2016 (Act No. 8, 2016) Assent date 6 April 2016 Commenced 1 May 2016 (s 2, s 2 Local Court (Repeals and Related Amendments) Act 2016 (Act No. 9, 2016) and Gaz S34, 29 April 2016) Statute Law Revision Act 2020 (Act No. 26, 2020) Assent date 19 November 2020 Commenced 20 November 2020 3 SAVINGS AND TRANSITIONAL PROVISIONS s 12 Legal Aid Amendment Act 1998 (Act No. 78, 1998) 4 GENERAL AMENDMENTS General amendments of a formal nature (which are not referred to in the table of amendments to this reprint) are made by the Interpretation Legislation Amendment Act 2018 (Act No. 22 of 2018) to: ss 1, 4, 11, 18, 19, 20, 30, 42, 45, 55 and 59 and lt. -- 43 of 44 -- ENDNOTES Legal Aid Act 1990 40 5 LIST OF AMENDMENTS lt amd No. 26, 2020, s 3 s 4 amd No. 28, 1993, s 3; No. 78, 1998, s 4; No. 63, 1999, s 4; No. 62, 2001, s 15; No. 7, 2007, s 16 s 6 amd No. 63, 1999, s 5 s 8 amd No. 35, 2006, s 25 s 11 amd No. 5, 1995, s 19; No. 78, 1998, s 5 s 18 amd No. 28, 2993, s 3; No. 70, 1993, s 8; No. 78, 1998, s 6; No. 7, 2007, s 16 s 19 amd No. 7, 2007, s 16 s 19A ins No. 78, 1998, s 7 s 20 sub No. 28, 1993, s 3 amd No. 7, 2007, s 16 s 30 amd No. 78, 1998, s 8; No. 7, 2007, s 16 pt 7 div 1 hdg ins No. 78, 1998, s 9 s 42 rep No. 5, 1995, s 19 ins No. 78, 1998, s 9 ss 42A – 42D ins No. 78, 1998, s 9 pt 7 div 2 hdg ins No. 78, 1998, s 9 s 45 amd No. 5, 1995, s 19; No. 78, 1998, s 10 s 47 amd No. 63, 1999, s 6 s 48 amd No. 7, 2007, s 16; No. 8, 2016, s 45 s 49 amd No. 63, 1999, s 7 s 50 amd No. 63, 1999, s 8 s 51A ins No. 63, 1999, s 9 s 52 amd No. 63, 1999, s 10 s 55 amd No. 75, 1992, s 2; No. 5, 1995, s 19; No. 7, 2007, s 16; No. 3, 2010, s 3 s 57 amd No. 17, 1996, s 6; No. 3, 2010, s 3 s 59 amd No. 77, 1993, s 8; No. 45, 2000, s 11 s 63 amd No. 28, 1993, s 3 rep No. 78, 1998, s 11 s 65 amd No. 7, 2007, s 16 -- 44 of 44 --