Policies
2. Legal Aid Commission Act
2.3. Part 2 - Constitution and management of Legal Aid Commission
2.3.1 Section 6 - Constitution of the Commission
Commentary
The status of Legal Aid NSW as a statutory corporation representing the Crown means Legal Aid NSW can sue and be sued.
As a statutory corporation Legal Aid NSW can only perform functions assigned to it under the Act or other legislation
If proceedings are:
- taken against Legal Aid NSW or a member of staff, or
- Legal Aid NSW or staff member is the respondent to a notice issued under legislation.
the recipient is to notify the Commission Solicitor Legal Policy Branch. Back to top
2.3.2 Section 10 - Functions of the Commission
Commentary
Section 10 sets out the principal function of Legal Aid NSW, to provide legal aid and other legal services in accordance with this Act.
Developing policies
Section 10 enables Legal Aid NSW to decide the types of matters for which it will grant of legal aid. Legal Aid NSW can develop policies to be applied when make determinations for legal aid including the application of a means test.
Employing staff
Legal Aid NSW cannot employ staff. Staff may be employed under Chapter 1A of the Public Sector Employment and Management Act 2002 (NSW) in the Government Service to enable Legal Aid NSW to exercise its functions.
Schedule 1 of that Act means that staff employment conditions are those of the Public Service under Chapter 2 of that Act.
Commentary
Section 11 allows Legal Aid NSW to provide legal aid by such means as it determines including on either, an in-house basis (or public defender) or by assigning to private law practices.
2.3.4 Section 11A - Provision of legal advice only
Commentary
Legal advice
Legal advice is privileged but it is not legal aid for the purposes of receiving applications and making grants for assistance under Part 3 of the Act.
Section 11A was inserted to address an observation made by the court in Wentworth v Rogers (No 12) (1987) 9 NSWLR 400, that the provision of advice was not covered by privilege under section 25(1) and (2) of the Act.
2.3.5 Section 12 - Duties to be observed in the provision of legal aid
Section 12 - Duties to be observed in the provision of legal aid
Commentary
Section 12 sets out duties which need to be observed in the provision of legal aid, including how policies are developed in relation to allocating legal work between in-house and private law practices.
A number of cases have considered the implications of s12 of the Act as it relates to the assignment of matters and the discretion of Legal Aid NSW when determining applications: See Legal Services Commission v Stephens [1981] 2 NSWLR 697; Milat v Legal Aid Commission (1995) SC 3026/95; Attorney General v Milat (1995) 37 NSWLR 370.
Assigning indictable criminal matters
The Court of Appeal in Legal Services Commission of New South Wales v. Stephens [1981] 2 NSWLR 697 discussed Legal Aid NSW section 12 duties and its policy concerning the allocation of work between in-house legal practitioners.
The Court of Appeal, Street C J, Moffit P, :and Hope J A, held
“Provided due regard is had to all the matters contained in s12 the Commission may validly formulate and act upon general policy guideline.
Accordingly, a general policy determination that the conduct of indictable criminal proceedings in respect of which it granted an application for legal aid pursuant to s34 of the Act, would not, unless there were exceptional circumstances, be assigned to solicitors in private practice unless the Public Solicitor was unable to conduct those proceedings, was not inconsistent with and contrary to the provisions of the Act (particularly s12(f)) and was not invalid”.
This case has confirmed that Legal Aid NSW policy in relation to allocating legal work between in-house and private legal practices in indictable criminal matters is not inconsistent with any of the provisions in s12 of the Act.
See Representation chapter for Legal Aid NSW policies on allocating legal work in criminal matters between in-house and private legal practitioners.
Can a legal aid applicant request a specific private legal practitioner?
Legal Aid NSW has developed policies in relation to allocating work between in-house and private legal practitioners for criminal, civil and family law matters. Legal Aid NSW, in developing its policy has considered s12 of the Act in detail.
Section 12(f)(ii) of the Act does not automatically entitle an applicant to the legal practitioner of their choice: see Legal Services Commission v Stephens [1981] 2 NSWLR 697.
See Representation chapter for Legal Aid NSW policy on allocating and assigning legal work between in-house legal practitioners and private law practices.
Remuneration in matters assigned to private legal practitioners
In Attorney General v Milat (1995) 37 NSWLR 370 the Court of Appeal unanimously set aside Hunt J's orders which demanded Legal Aid NSW reconsider its scale of fees for experienced counsel and held it was inconsistent with Dietrich for trial judges to
“embark upon a detailed exercise of assessing the relative degrees of competence and experience potentially available to act for an accused person. …the principle in Dietrich turns upon whether legal representation is unavailable to an indigent accused…it does not concern an accused person's supposed right to competent counsel…”
The Court of Appeal decision confirmed the power of Legal Aid NSW to determine the scale of fees paid to private law practices for legal aid work.
Can a grant of aid be conditional on Legal Aid NSW nominating a legal practitioner?
The decision of Legal Aid NSW to make a grant conditional on a nominated legal practitioner does not breach subsection 12(f).
See Representation chapter for Legal Aid NSW policies on allocating legal work between in-house and private law practices.
2.3.6 Section 13 - Annual report
2.3.7 Section 14 - Constitution of Board
Commentary
The make up of the Board of Legal Aid NSW indicates the commitment to diversity of representation on the Board of Legal Aid NSW.
2.3.8 Section 15 - Function of Board
Section 15 - Function of Board
2.3.9 Section 16 - Chief Executive Officer
Section 16 - Chief Executive Officer
2.3.10 Section 17 - Functions of Chief Executive Officer
Commentary
Division 3 determines how the powers, functions and responsibilities of Legal Aid NSW are performed. The Board is responsible for developing the policies as they relate to the administration and granting of legal aid and Legal Aid NSW strategic planning.
The Chief Executive Officer for Legal Aid NSW manages the day to day operations of Legal Aid NSW including finance, human resources and the provision of legal services.
The Chief Executive Officer is appointed by the Minister and is not required to be a legal practitioner.
2.3.11 Section 23A - Appointment of solicitor to be solicitor practising on own account
Section 23A - Appointment of solicitor to be solicitor practicing on own account
Commentary
The Chief Executive Officer can exercise the functions of a solicitor if he or she has a practising certificate. The CEO can appoint one or more staff members who hold practising certificates, to exercise the CEOs functions under ss24, 28 and 64A if the CEO does not hold an Australian practising certificate.
Where documents have to be signed under s28 of the Act in relation to proceedings involving an applicant for legal aid or a legally assisted person, Richard Funston, Deputy CEO (Legal) is the Solicitor on Record.
The person responsible for administration of the Legal Aid NSW Trust Account under section 64A of the Act is listed at section 32 of the Delegation Instrument.
2.3.19 Section 24 - Performance of functions of solicitor
“(1) The Chief Executive Officer or a member of staff of the Commission shall not perform any functions of a solicitor under this Act unless the Chief Executive Officer or member of staff holds a current Australian practising certificate.
(2) In practising as, or performing the functions of, a solicitor under this Act:
(a) the Chief Executive Officer has all the functions of a solicitor practising on the solicitor's own account,
(b) a member of staff of the Commission has all the functions of a solicitor employed by a person practising as a solicitor on the person's own account, and
(c) the Chief Executive Officer and each member of staff of the Commission
(i) 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 that profession, and
(ii) are 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 that profession
(2A) If the Chief Executive Officer does not hold a current Australian practising certificate, a reference in subsection (2) to the Chief Executive Officer is to be read as a reference to the relevant member of staff appointed for the time being under section 23A.
(3) Nothing in this section affects the operation of section 25”.
Commentary
Section 24(1) requires all Commission staff practising as legal practitioners, to hold a current Australian practising certificate.
Legal practitioners' professional responsibilities
Section 24(2)(c) requires in-house legal practitioners to follow the same rules and standards of professional conduct and ethics and observe the same duties as those of a private legal practitioner. If a non-legal staff member of Legal Aid NSW is performing legal functions, subsection 2(c) applies to them in the same way as to legal staff.
Legal practitioners have a responsibility to ensure non-legal staff who are performing legal functions are aware of any relevant professional responsibilities that may have to observe in their work.
Profession rules and ethics
Legal practitioners should be familiar with the NSW Solicitors Manual. Legal Aid NSW staff can contact the Commission Solicitor and the Legal Policy Branch for advice about any professional or ethical concerns that may have.
Complaints about legal practitioners
Complaints may be made to the Law Society or Legal Services Commissioner about legal practitioners employed by Legal Aid NSW: see Legal Profession Uniform Law Application Act 2014 (NSW).
2.3.13 Section 25 - Solicitor-client relationship
Commentary
Solicitor-client relationship
The solicitor-client relationship created by subsections 25(1) and (2) is to ensure a legally assisted person receives the same benefits and protection as they would if they retained their own legal practitioner.
The solicitor-client relationship only arises in the course of acting for a legal aid applicant or legally assisted person as a legal practitioner. It does not apply to when Commission staff are in the process of arranging for an applicant or legally aided person to be represented by a private practitioner (subsection 1).
The same privileges which arise from the solicitor-client relationship arise between the client and Legal Aid NSW or a Committee established under the Act and a legal aid applicant or a legally assisted person.
Subsection 25(3) and the administration of legal aid
Subsection 25(3) of the Act means Legal Aid NSW does not have to disclose information in relation to the administration of legal aid to any person or court.
This provision gives extra protection to the legally aided client in that information provided to Legal Aid NSW in relation to an application for legal aid, which may not attract privilege or confidentiality under the solicitor-client relationship, does not have to be divulged by Legal Aid NSW: See Tectran Corporation Pty Ltd & Ors v. Legal Aid Commission of New South Wales & ANOR 4 July 1986 SC and Tectran Corporation Pty Ltd & Ors v. Legal Aid Commission of New South Wales & ANOR 7 NSWLR 340 where s25(3) is discussed at length.
Subsections 25(1)–(3) of the Act means Legal Aid NSW does not have to give its reasons for determining a grant of legal aid to the court: See Wentworth v Rogers (No 12) (1987) 9 NSWLR 40.
Exceptions to disclosure
Legal Aid NSW can disclose in circumstances set out in subsection (4)(a) to (l).
This includes:
- providing information to the legal aid applicant
- providing information to the legally assisted person
- for the purpose of ADR
- providing information with consent
- certain information about an application for legal aid can be divulged to a court or tribunal.
Legal professional privilege
Legal professional privilege is to be claimed for documents covered by the privilege unless the client has waived their privilege.
Protection for informants
Subsection 25(5) of the Act protects the identity of people who inform Legal Aid NSW about a breach of the Act or an offence in connection with the administration of legal aid.
Legal advice privileged
Subsection 25(6) reinforces the effect of s11A of the Act on legal advice being legal aid for the purpose of section 25.
Subpoenas
When Legal Aid NSW is served with a subpoena to give evidence or produce documents in any legal aid matter the documents subpoenaed must be considered in light of s25. and s26 of the Act. Subpoenas served on Legal Aid NSW should be referred to the Solicitor to Legal Aid NSW, Legal Policy Branch.
Legal professional privilege is to be claimed for those documents covered by the privilege, unless the client has waived his or her privilege.
Section 25(3) is to be relied on for those documents which relate to the administration of legal aid.
Procedure when served with subpoena
When Legal Aid NSW is served with a subpoena, the Legal Aid NSW officer responsible for the legal aid matter, whether an in-house or assigned matter, must inform:
- their supervisor, and
- the Solicitor to Legal Aid NSW
that a subpoena has been served.
Who is responsible for responding to subpoenas?
The Solicitor to Legal Aid NSW is responsible for responding to all subpoenas served on Legal Aid NSW.
Legal Aid NSW maintains a record of all subpoenas to produce documents served on Legal Aid NSW.
Who can divulge information under section 25?
Legal Aid officers having conduct of a matter are authorised under the Delegation Instrument to consent to the provision of information or a document to a court or tribunal as provided under s25(4)(l) of the Act, unlesss legal aid has been wholly or partly refused under the Legal Aid NSW merit test.
In these cases the matter is to be referred to a Senior Solicitor Grade V or above are authorised under the Delegation Instrument to determine whether Legal Aid NSW consents to the divulging of this information.
Reconciling s25(3) and s26 of the Act
Subsection 25(3) of the Legal Aid Commission Act 1979 prevents Legal Aid NSW from divulging to a court any information relating to the adminstration of legal aid (Tectran Corporation Ltd v Legal Aid Commission of NSW). Section 26 makes it an offence for any person engaged in the administration of the Act to divulge any information obtained in connection with the administration of legal aid.
The purpose of subsection 25(3) has been discussed in a number of cases. It has been reasoned that the subsection was included to extend the benefit of legal professional privilege to an application for legal aid and material submitted in suppport of the application, so as to put a legally assisted person or legal aid applicant in the same position with regard to the confidentiality of information provided by them, as a privately funded client. However, the legislation is drafted in such a way that it protects from disclosure more than the information provided by or on behalf of the client in support of their application. Subsection 25(3) refers to information relating to the administration of legal aid, and section 26 refers to information obtained in connection with the administration of legal aid.
In Wentworth v Rogers (No 12) the Court of Appeal expressed the opinion that the section 26 prohibition was directed to unauthorised leaks and would not extend to information which is divulged at the direction or on behalf of Legal Aid NSW which Legal Aid NSW is entitled to divulge pursuant to subsection 25(3). This appears to be inconsistent with the Court's slightly earlier decision in Tectran.
Reading Tectran and Wentworth together, they can be reconciled as follows: there is a broad prohibition on staff disclosing, without authorisation, any information they obtain as a result of their work in Legal Aid NSW. However, Legal Aid NSW may authorise the disclosure of information provided that it does not relate to the administration of legal aid.
2.3.14 Section 26 - Divulging of certain information prohibited
Commentary
Certain information cannot be divulged
A person involved in the administration of legal aid must not divulge any information obtained in the connection with the administration of legal aid. It is an offence to divulge any information obtained in connection with the administration of legal aid.
Section 26 of the Act is a statutory confidentiality or secrecy provision that applies to all employees of Legal Aid NSW, as well as private law practices and contractors.
Section 26 of the Act protects both documents and information.
Responsibility of senior staff
Senior staff responsible for the supervision of staff must advise staff they are supervising that they are prohibited from disclosing any information obtained in the connection with the administration of legal aid unless it comes within the exceptions in s25(4) of the Act.
Exceptions to divulging information
Section 26 does not prevent information being divulged if the information is:
- in connection with the proper administration of legal aid, or
- as referred to in s25(4) of the Act
Disclosures to a court or tribunal about the outcome of an application for legal aid cannot be made without the consent of Legal Aid NSW: section 25(4)(l).
Section 26 does not limit s25
Section 26 does not limit s25 of the Act, and consequently the CEO, a member of a Legal Aid NSW Committee, a Board member or a Legal Aid NSW staff member cannot be required to divulge any information or document merely because divulging the information or document is not prohibited by s26 of the Act: see Wallach v Amalgamated Television Services SC 13226 of 1987 11 November 1988.
Prosecution under this section
Prosecutions for breaches of s26 of the Act must be in accordance with s72 of the Act.
The penalty for a breach of s26 of the Act is 50 units ($5500) or 6 months in prison.
Defamation Act
Schedule 1 of the Defamation Act 2005 (NSW) establishes what a defence of absolute privilege applies to.
Inquiries by staff
Inquires about the effect or interpretation of s26 and whether information can be disclosed can be directed to the Legal Aid NSW legal policy branch in Head Office.
Reconciling s25(3) and s26 of the Act
Subsection 25(3) of the Legal Aid Commission Act 1979 prevents Legal Aid NSW from divulging to a court any information relating to the adminstration of legal aid (Tectran Corporation Ltd v Legal Aid Commission of NSW). Section 26 makes it an offence for any person engaged in the administration of the Act to divulge any information obtained in connection with the administration of legal aid.
The purpose of subsection 25(3) has been discussed in a number of cases. It has been reasoned that the subsection was included to extend the benefit of legal professional privilege to an application for legal aid and material submitted in suppport of the application, so as to put a legally assisted person or legal aid applicant in the same position with regard to the confidentiality of information provided by them as a privately funded client. However, the legislation is drafted in such a way that it protects from disclosure more that the information provided by or on behalf of the client in support of their application. Subsection 25(3) refers to information relating to the administration of legal aid, and section 26 refers to information obtained in connection with the administration of legal aid.
In Wentworth v Rogers (No 12) the Court of Appeal expressed the opinion that the section 26 prohibition was directed to unauthorised leaks and would not extend to information which is divulged at the direction or on behalf of Legal Aid NSW which Legal Aid NSW is entitled to divulge pursuant to subsection 25(3). This appears to be inconsistent with the Court's slightly earlier decision in Tectran.
Reading Tectran and Wentworth together, they can be reconciled as follows: there is a broad prohibition on staff disclosing, without authorisation, any information they obtain as a result of their work in Legal Aid NSW. However, Legal Aid NSW may authorise the disclosure of information provided that it does not relate to the administration of legal aid.
Commentary
Section 27(1) of the Act protects the CEO, employees, board members and committee members from legal liability for acts and omissions performed in good faith for the purpose of executing the Act.
The protection does not extend to private law practices to whom legal aid work has been assigned.
Complaints
Section 27 does not prevent investigation of complaints about employed legal practitioners under the Legal Profession Uniform Law Application Act 2014 (NSW); or, disciplinary action taken against any employee under Part 5 of Government Sector Employment Act 2013 (NSW).
Panels of private law practices
Subsections 27(2) and (3) were added by the Legal Aid Commission Amendment Act 2002 at the same time as the provisions of Part 3 Division 2 dealing with panels of private law practices. The provisions protect Legal Aid NSW from liability for actions of private law practices and it protects Legal Aid NSW from liability in relation to action taken concerning assignment of work, any audit undertaken or action it may take to remove a law practice from a panel.
Commentary
Section 28 enables any in-house legal practitioner to sign documents provided to or lodged with the Court where a party is a legally aided person or applicant for legal aid.
Date Last Published: 15/03/2021