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Annual Report 2016 - 2017

Legislative compliance

We met our legal obligations under all the relevant legislative requirements.

Significant cases on the Legal Aid Commission Act 1979

Khalid v Legal Aid Commission [2016] NSWSC 1640

The plaintiff was granted legal aid to defend serious criminal charges, and requested that the grant be assigned to a lawyer who had been representing him in the matter for some time. Legal Aid NSW has established a panel of lawyers to represent clients in serious criminal matters. As the nominated lawyer was not on that panel, Legal Aid NSW assigned the matter to another lawyer who was on the panel. The plaintiff commenced proceedings in the Supreme Court seeking judicial review of that decision, relying on four grounds: the assignment was made otherwise than in accordance with s12 of the Legal Aid Commission Act 1979; the assignment was made otherwise than in accordance with the Legal Aid NSW Allocation Guidelines; Legal Aid NSW had failed to take into account relevant matters; and the decision was so unreasonable as to constitute error of law or jurisdictional error.

The Court confirmed the decision in Legal Services Commissioner v Stephens finding that it is a matter for Legal Aid NSW to determine the solicitor to whom a grant will be assigned. The Court found that the decision was not unreasonable as it was based on the conclusion that a member of the Serious Crime Panel would best protect and represent the plaintiff’s interests, and this conclusion was reasonably open. Therefore no error of law had taken place. The proceedings were dismissed.

Nigam v Minister for Immigration and Border Protection [2017] FCA 106

If a court makes a costs order against a legally assisted person, section 47(1)(b) of the Legal Aid Commission Act 1979 provides that the legally assisted person is not liable to pay any part of those costs. Section 43(1) of the Federal Court of Australia Act 1979 gives the Federal Court jurisdiction to award costs. Section 109 of the Constitution provides that when a State law is inconsistent with a Commonwealth law, the Commonwealth law prevails and the State law is invalid. In Woodlands v Permanent Trustee Company Ltd [1996] FCA 1643 the Full Court of the Federal Court held that section 47(1)(b) is inconsistent with the Federal Court’s power to award costs given by section 43(1). Because of this inconsistency, s 109 applies, and section 47(1)(b) does not indemnify a legally assisted person against a costs order in Federal Court proceedings.

The appellants argued that section 79 of the Judiciary Act 1903 (Cth) ‘picks up’ section 47(1)(b) and applies it as federal law. Section 79 provides that State laws are binding on courts exercising federal jurisdiction within that State unless otherwise provided by the laws of the Commonwealth.

The Full Court held that section 79 did not overcome the invalidity of section 47(1)(b) in Federal Court proceedings, because section 79 only picks up procedural laws.

In Nigam v Minister for Immigration and Border Protection, the Federal Court noted that in Wilson v Alexander [2003] FCAFC 272, in considering whether section 57 of the Legal Aid Commission Act 1979 applies in the Federal Court, the Full Court held that Woodlands had been wrongly decided insofar as it held that section 79 picks up only procedural laws.

The Federal Court held that Woodlands must be regarded as overruled insofar as it held that section 47(1)(b) was not applied as a federal law by operation of section 79 on the basis that section 79 only applies to procedural laws. This did not determine the question of whether section 79 operates to apply section 47(1)(b) as a federal law.

The applicant did not argue that section 47(1)(b) applied by operation of section 79 and, in the absence of argument on the point, the Court felt that it would be inappropriate to determine the issue. Therefore, the question remains open.

Full compliance with public interest disclosures

Legal Aid NSW has complied with our six-monthly reporting obligations under the Public Interest Disclosures Act 1994. There were no public disclosures in this reporting period.

This year, we enhanced our Public Interest Disclosures policy and internal reporting framework by expanding the number of disclosure officers to whom employees may make a report of serious wrongdoing. Where previously such reports could only be made to the CEO or Deputy CEO, they can now be made to the Senior Consultant Workplace Standards and to any of the People and Organisational Development Business Partners. These additional pathways will ensure that employees who report serious wrongdoing are protected, under the Public Interest Disclosures Act 1994, from detrimental action for having made such a report.

Privacy

Legal Aid NSW manages personal information in accordance with its Privacy Management Plan.

The Plan explains how we manage personal information under the Privacy and Personal Information Protection Act 1998 and Health Records and Information Privacy Act 2002.

We include privacy notices in our application forms and other public documents, and provide guidance to staff on dealing with privacy issues and queries. We did not receive any privacy complaints this year. We proactively reported an information security incident to the Acting Privacy Commissioner.

Right to Information

Legal Aid NSW adopts a proactive approach to the release of information where possible. We review our published information on a regular basis and routinely upload information to our website that may be of interest to the general public. This includes updating a wide range of publications and resources for the public, including factsheets, information brochures and pamphlets about legal rights and responsibilities, policy documents and law reform submissions. Fact sheets are also available in a variety of languages.

The full details of the applications we received under the Government Information (Public Access) Act 2009 (GIPA Act) are set out in Appendix 8. During 2016–2017, we received 19 formal GIPA applications and 16 information applications. There were no internal reviews conducted in the 2016–2017 reporting period.