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2. Legal Aid Commission Act

2.7. Part 5 - Miscellaneous

2.7.1 Section 68 - Consultative committees

“(1) The Commission may establish standing or special consultative committees for the purpose of advising the Commission in the exercise of its functions under this Act.

(2) The members of a consultative committee established under subsection (1) shall be appointed by the Commission on such terms and conditions as the Commission may determine and shall consist of such persons as the Commission considers appropriate.

(3) The Commission shall appoint one of the members of a consultative committee established under subsection (1) to be chairperson of the committee and any such committee may, subject to subsection (4) and to any directions of the Commission, regulate its procedure in such manner as it thinks fit.

(4) The Commission may specify the number of persons who shall constitute a quorum of a consultative committee established under subsection (1)”.

2.7.2 Section 69 - Delegation

“The Commission may, by instrument in writing, delegate the exercise of such of the functions of the Commission (other than this power of delegation) as are specified in the instrument to any of the following:

(a) a committee comprised of members of the Board, including the Chief Executive Officer or a member of the Board nominated by the Chief Executive Officer,

(b) a member of staff of the Commission,

(c) a person for the time being holding or acting in a specified position in the staff establishment of the Commission,

(d) any person (including a private legal practitioner) of whose services the Commission makes use pursuant to this or any other Act”.

Note. Section 49 of the Interpretation Act 1987 contains general provisions relating to the delegation of function”.

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Commentary

Section 69 should be read in the light of the functions conferred on the Chief Executive Officer under s17 of the Act, in particular, his responsibilities for the delivery of legal aid and legal services under s17(1)(a) and s17(2).

The Board may delegate the functions conferred on it by s15 of the Act to a Committee of the Board that includes the Chief Executive Officer.

See Delegation Instrument for the functions delegated in relation to the administration and granting of legal aid under the Act.

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2.7.3 Section 70 - Determination of pecuniary interests

“(1) The Commission may determine that the interest of a member of the Board or a member of a committee established under this Act is or is not a direct or indirect pecuniary interest for the purposes of this Act.

(2) A determination made by the Commission under subsection (1) shall be final and conclusive”


2.7.4 Section 71 - Notices

“(1) Where, under this Act, notice in writing is required to be given to a person by the Commission, the notice may be given:

(a) in the case of a person other than a corporation:

(i) by delivering it to the person, or

(ii) by delivering it, or by sending it by prepaid post, addressed to the person at the address, if any, specified by the person for the giving of notices under this Act, or, where no such address is specified, at the person's usual place of abode or the person's place of business, being the usual place of abode or place of business last known to the Commission, or

(b) in the case of a corporation:

(i) by leaving it at the place of business, or registered office, of the corporation with a person apparently in the service of the corporation and apparently not less than 16 years of age, or

(ii) by delivering it, or by sending it by prepaid post, addressed to the corporation at the address, if any, specified by the corporation for the giving of notices under this Act, or, where no such address is specified, at the registered office of the corporation or its place of business last known to the Commission.

(2) Notice shall, in respect of a notice sent by prepaid post in accordance with subsection (1) (a) (ii) or (b) (ii), be deemed to have been given at the time at which the notice would be delivered in the ordinary course of post”.


2.7.5 Section 71A - Interest

“(1) Interest at the prescribed rate is payable on:

(a) an amount or part of an amount payable by a person under section 33 (2) that is not paid by such date as may be specified in a direction under section 33 (3), or

(a1) an amount or part of an amount payable by a person under section 36 (1) that is not paid by such date as may be specified in a direction under section 36 (2), or

(b) an amount or part of an amount payable by a person under section 38 (1) (c) or (d) that is not paid by such date as may be specified in a direction under section 38 (6), or

(b1) an amount or part of an amount payable by a person under section 44 (1) that is not paid by such date as may be specified in a direction under section 44 (2), or

(b2) an amount or part of an amount payable by a person under section 46 (1) that is not paid by such date as may be specified in a direction under section 46 (2A), or

(c) an amount or part of an amount payable by a person under section 48 (1) that is not paid by such date as may be specified in a direction under section 48 (1A), or

(d) an amount or part of an amount payable by a person under section 60C (3) that is not paid by such date as may be specified in a direction under section 60C (4).

(2) In this section:

prescribed rate means:

(a) a rate equivalent to 50 per cent of the rate prescribed for the purposes of section 101 of the Civil Procedure Act 2005, or

(b) if some other rate is prescribed by the regulations, that other rate”.


2.7.6 Section 72 - Proceedings for offences

“(1) Proceedings for an offence against this Act or the regulations are to be dealt with summarily before a Local Court constituted by a Magistrate sitting alone.

(2) Proceedings for an offence arising under section 26 or 32 may be commenced at any time within 2 years after the offence was allegedly committed.

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Commentary

An offence against the Act arising under ss26 of the Act and 32 of the Act must be dealt with within 2 years.

The CEO has not delegated the authority to investigate and prosecute under this section.

2.7.7 Section 72A - Agreements or arrangements with Commonwealth

“(1) The State, or the Commission with the approval of the Attorney General, may from time to time enter into an agreement or arrangement with the Commonwealth for or with respect to the provision of legal aid.

(1A) The matters for which any such agreement or arrangement may provide include (but are not limited to the following:

(a) the money to be made available by the Commonwealth, or (in the case of an agreement or arrangement between the State and the Commonwealth) by the State and the Commonwealth, for the purposes of the provision of legal aid and other legal services,

(b) the priorities to be observed, in relation to money made available by the Commonwealth, in the provision of legal aid and other legal services.

(2) Any such agreement or arrangement shall, except in so far as it is inconsistent with this Act or the regulations, be binding on the Commission”.

Commentary

Section 72A of the Act authorises Legal Aid NSW, with the approval of the Attorney General to enter directly into agreements with the Commonwealth for the provision of legal aid.

When Legal Aid NSW enters into an agreement for funding with the Commonwealth government for the purpose of providing legal aid in relation to Commonwealth matters. Legal Aid NSWs Board must approve and adopt the Commonwealth Guidelines and priorities before they are incorporated into Legal Aid NSWs polices.

The Commonwealth agreement for funding currently includes funding for Commonwealth criminal, civil and family law matters.

See family lawcivil law and criminal law for Legal Aid NSWs policies and guidelines in relation to

  • The types of matters for which legal aid is available under Commonwealth law
  • The tests a legal aid applicant must meet before a grant of legal aid can be a made in relation to Commonwealth matters.
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2.7.8 Section 76 - Regulations

“(1) The Governor may make regulations, not inconsistent with this Act, for or with respect to any matter that by this Act is required or permitted to be prescribed or that is necessary or convenient to be prescribed for carrying out or giving effect to this Act.

(2) A regulation may create an offence punishable by a penalty not exceeding 5 penalty units”.

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Commentary

The Legal Aid Commission Regulation 2006 (NSW) makes a provision for private practitioner panels.

 

Date Last Published: 29/05/2009

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