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Annual Report 2011 - 2012

Legislative compliance

Significant cases and legislative amendments

There were two significant cases relating to the provision of legal aid this year.

Rowell & Keough [2011] FamCAFC 74 was a case that considered s57 of the Legal Aid Commission Act 1979. Section 57 provides that if a party to proceedings before a court or tribunal has appealed or intends to appeal to a Legal Aid Review Committee against a decision made by Legal Aid NSW, that party may apply for an adjournment of the proceedings pending the hearing of the appeal. The Full Court of the Family Court of Australia confirmed that s57, though a New South Wales provision, applies to proceedings in the Federal Magistrates Court. The Court went on to consider the special circumstances that would prevent a court from granting an adjournment of family law proceedings when a party has an appeal pending before a Legal Aid Review Committee.

Commonwealth Bank of Australia v Clapham [2012] NSWSC 41 was a decision of the Supreme Court in which McDougall J expressed the view that, in determining whether there are special circumstances preventing a court from granting an adjournment under s57 of the Legal Aid Commission Act 1979, the Court should have regard to the dictates of the sections of the Civil Procedure Act 2005 from s56 onwards, which provide guiding principles for the case management of civil proceedings.

The Legal Aid Commission Regulation 2011 commenced on 1 September 2011. The Regulation reproduces the previous regulation which expired on 31 August 2011 and allows for the term of appointment to a lawyers panel to be up to five years.

Public interest disclosures

The Protected Disclosures Act 1994 was amended in 2010 and 2011 and renamed the Public Interest Disclosures Act 1994 (the PID Act). Legislative changes to strengthen the protections for public officials who disclose wrongdoing came into effect from 1 July 2011. As required by the PID Act, Legal Aid NSW has appointed a Disclosures Coordinator, the Deputy CEO Operations, and will be adapting a policy for receiving, assessing and dealing with public interest disclosures.

Legal Aid NSW has not received any public interest disclosures since 1 January 2012.

Right to information

The Government Information (Public Access) Act 2009 (GIPA Act) commenced from 1 July 2010, replacing the Freedom of Information Act 1989. The GIPA Act provides for a regime of open government information, encouraging the release of information without the need for formal applications.

During 2011–2012, Legal Aid NSW continued to make information about legal aid and other matters, including policy documents, available to the public, in most cases free of charge. In this, the second year of operation of the GIPA Act, we experienced a significant increase in requests for information, both informal requests and formal applications. Twenty-two formal applications were received. There have also been three applications to the Office of the Information Commissioner for external review of Legal Aid NSW GIPA decisions.

Most requests continued to be from clients seeking access to material from their own case files and applicants for legal aid seeking to understand how their applications were determined. However, there were a number of applications which raised complex legal issues, including legal professional privilege. This, together with the more stringent procedures under the new legislation, means that compliance with the GIPA Act requires a greater commitment of resources than was the case with the previous legislation. Details of the number of applications under the GIPA Act are provided in Appendix 9.