Part 2 - Constitution and management of Legal Aid Commission
6 Constitution of the Commission
(1) There is hereby constituted a corporation under the corporate name of the “Legal Aid Commission of New South Wales”.
(2) (Repealed)
(3) The Commission is, for the purposes of any Act, a statutory body representing the Crown.
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 Manager Inhouse Counsel.
10 Functions of the Commission
(1) The principal function of the Commission is to provide legal aid and other legal services in accordance with this Act.
(2) The Commission in the exercise of its principal function may—
(a) determine—
i) the persons or classes of persons in respect of whom legal aid may be granted, and
(ii) the matters or classes of matters in respect of which legal aid may be granted,
(b) determine priorities in the provision of legal aid as between—
(i) different persons or different classes of persons, and
(ii) different matters or different classes of matters,
(c) (Repealed)
(d) specify principles, including the imposition of means tests, to be applied in determining applications for legal aid,
(e) specify the circumstances, if any, in which contributions shall be paid by legally assisted persons and the means of calculating any such contributions,
(f) establish and conduct such local offices as it considers appropriate,
(g) liaise and co-operate with persons engaged or interested in the provision, in New South Wales or elsewhere, of legal aid otherwise than under this Act,
(g1) (Repealed)
(h) give assistance and make grants, on such terms and conditions as it thinks fit, to persons or bodies within New South Wales for the provision by those persons or bodies of legal aid,
(i) enter into agreements for the provision of legal aid to citizens of New South Wales in proceedings outside New South Wales with bodies which exercise, outside New South Wales, functions similar to those of the Commission,
(j) bring to the attention of the public, by publishing advertisements or otherwise, the services provided by the Commission,
(k) collect and publish information in respect of the functions of the Commission and in respect of other schemes of legal aid provided in New South Wales,
(l) undertake research into all aspects of legal aid including the investigation and assessment of different methods of financing and providing legal aid,
(m) initiate and carry out educational programmes designed to promote an understanding by the public, or by sections of the public, of their rights, powers, privileges and duties under the laws of New South Wales, and
(n) make reports and recommendations to the Minister on such matters relating to the functions of the Commission as the Minister requests or as the Commission considers appropriate.
(3) The Commission may exercise such other functions as are conferred or imposed on it by or under this or any other Act.
(4) The Commission may do all such supplemental, incidental and consequential acts as may be necessary or expedient for the exercise of its functions.
(5) Persons may be employed in the Public Service under the Government Sector Employment Act 2013 to enable the Commission to exercise its functions.
Note—
Section 59 of the Government Sector Employment Act 2013 provides that the persons so employed (or whose services the Commission makes use of) may be referred to as officers or employees, or members of staff, of the Commission. Section 47A of the Constitution Act 1902 precludes the Commission from employing staff.
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.
1) Legal aid may be provided by the Commission by such means as it may determine, including any one or more of the following means—
(a) by arranging for the services of law practices to be made available, wholly or partly at the expense of the Commission,
(b) by making available the services of the Chief Executive Officer or members of staff of the Commission, or
(c) by arranging for the services of the Public Defenders to be made available.
(2) Nothing in this Act prevents the Commission from providing, to a patient within the meaning of the Mental Health Act 2007, aid in respect of any matter, whether of a legal nature or not, by arranging for the services of persons approved by the Commission, whether or not the services are provided by a law practice.
(3) Except as provided by subsection (2), this Act applies to and in respect of the provision of legal aid by a person approved by the Commission under that subsection in the same manner as it applies to and in respect of the provision of legal aid by a law practice.
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.
To remove any doubt, it is declared that the giving of legal advice to a person constitutes the giving of legal aid if the person is given legal advice and no other form of legal aid. However, Part 3 does not apply to the giving of that advice.
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.
In respect of the provision of legal aid, the Commission shall—
(a) ensure that legal aid is provided in the most effective, efficient and economical manner,
(b) have regard to the need for legal aid to be readily available and easily accessible to disadvantaged persons throughout New South Wales,
(c) ascertain and keep under review community needs in relation to legal aid,
(d) liaise with professional bodies representing law practices and, where appropriate, use the services of law practices in the provision of legal aid,
(e) determine the allocation of legal aid services between the Chief Executive Officer or members of staff of the Commission and law practices and the principles on which law practices are to be offered or refused matters on assignment,
(f) ensure, if work is assigned to a law practice, that the assignment is made in accordance with procedures determined from time to time by the Commission in accordance with Division 2 of Part 3,
(g) ensure, by the assignment of appropriate work, the maintenance of the office of the Public Defenders,
(h) ensure the co-ordination of legal aid services and the avoidance of any unnecessary duplication in the provision of legal aid services,
(i) ensure that, except where otherwise expressly provided by this Act, nothing is done by the Commission, the Chief Executive Officer or members of staff of the Commission which may interfere with the relationship between a solicitor acting in the solicitor’s professional capacity and the solicitor’s client, and
(j) have regard to the desirability of enabling members of staff of the Commission to use and develop their expertise by undertaking, as far as is reasonably practicable, a full range of professional legal work.
(k) (Repealed)
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.
(1) The Commission shall, as soon as practicable after 30th June in each year, prepare and forward to the Minister a report of its work and activities for the year ending on that date and shall include in the report a review of all other legal aid services available in New South Wales.
(2) The Minister shall lay the report, or cause it to be laid, before each House of Parliament as soon as practicable after the receipt by the Minister of the report.
14 Constitution of Board
(1) There is to be a Board of the Commission.
(2) The Board is to consist of—
(a) the Chief Executive Officer, and
(b) 9 part-time members, appointed by the Minister, of whom—
(i) one is to be a person appointed as Chairperson of the Board (in and by the instrument of appointment as member or by a subsequent instrument executed by the Minister), and
(ii) one is to be a person nominated by the Bar Association, and
(iii) one is to be a person nominated by the Law Society, and
(iv) one is to be a person nominated by Unions NSW, and
(v) 3 are to be persons who, in the opinion of the Minister, possess skills or experience that would benefit the Board, and
(vi) one is to be a person who, in the opinion of the Minister, represents consumer and community welfare interests, and
(vii) one is to be a person who, in the opinion of the Minister, represents such bodies, whether incorporated or unincorporated, as provide community legal services.
(3) If a nomination for the purposes of subsection (2) (b) (ii), (iii) or (iv) is not received within the time or in the manner specified by the Minister by notice in writing given to the body entitled to make such a nomination, the Minister may appoint any person to be a part-time member of the Board instead of the person required to be appointed on that nomination.
(4) Before appointing a person referred to in subsection (2) (b) (vi) or (vii), the Minister must—
(a) cause to be published such advertisements (inviting applications from persons to apply for appointment as part-time members of the Board) in such form and manner as the Minister directs, and
(b) take into consideration any such applications received by the Minister.
(5) Schedule 2 has effect with respect to the membership of the Board.
(6) Schedule 3 has effect with respect to the procedure of the 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.
The Board has the function of establishing the broad policies and strategic plans of the Commission.
(1) There is to be a Chief Executive Officer of the Commission.
(2) The Chief Executive Officer is to be appointed by the Minister. The person so appointed may be, but is not required to be, a barrister or solicitor.
(3) Schedule 3A contains provisions relating to the Chief Executive Officer.
(1) The Chief Executive Officer—
(a) is responsible for the day-to-day management of the affairs of the Commission (including managing financial and human resources and the provision of legal aid and other legal services) subject to, and in accordance with, the broad policies and strategic plans established by the Board and any general directions the Board may issue in connection with those policies and plans, and
(b) has and may exercise such other functions as are conferred or imposed on the Chief Executive Officer by or under this or any other Act or law.
(2) Any act, matter or thing done in the name of, or on behalf of, the Commission by or with the authority of the Chief Executive Officer is taken to have been done by the Commission.
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.
23A Appointment of solicitor to be solicitor practising on own account
(1) If the Chief Executive Officer does not hold a current Australian practising certificate, the Chief Executive Officer is to appoint one or more persons to exercise the functions that would be exercisable by the Chief Executive Officer under sections 24, 28 and 64A if he or she held a current Australian practising certificate.
(2) A person so appointed must be a member of staff of the Commission who is a solicitor of appropriate seniority and experience and who holds a current Australian practising certificate.
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 clause 35 of the Delegation Instrument.
“(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(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' professional responsibilities
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 Manager Inhouse Counsel 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 2014 (NSW).
(1) The relationship arising by virtue of this Act between a solicitor, whether the solicitor is the Chief Executive Officer or a member of staff of the Commission or from a law practice to whom work is assigned under this Act, and an applicant for legal aid or a person to whom legal aid is granted shall be the relationship as between a solicitor acting in the solicitor’s professional capacity and in the course of the solicitor’s professional employment and the solicitor’s own client.
(1A) The relationship that arises as referred to in subsection (1) between a solicitor and a person who is an applicant for legal aid or who is a person to whom legal aid is granted arises only in the context of functions performed by the solicitor in the course of acting for the person as solicitor. That relationship does not arise therefore in the course of the exercise of functions under this Act in arranging for a law practice to act on behalf of the person.
(2) The like privileges as those which arise from the relationship of a solicitor acting in the solicitor’s professional capacity and in the course of the solicitor’s professional employment and the solicitor’s own client shall arise between the Commission or a committee established under this Act and an applicant for legal aid or a person to whom legal aid is granted.
(3) Without affecting the generality of subsection (1) or (2), the Commission, a committee established under this Act, the Chief Executive Officer or a member of staff of the Commission is not required to divulge to any person or court any information or document (including an application for legal aid) relating to the administration of legal aid.
(4) Nothing in subsection (1), (2) or (3) applies in respect of—
(a) the conduct of any matter necessary for the proper administration of this Act (including an agreement or arrangement referred to in section 72A),
(b) proceedings for an offence connected with the administration of legal aid,
(c) any disciplinary proceedings under the Legal Profession Uniform Law (NSW),
(d) any proceedings by which the Commission is seeking to recover money from a person in respect of whom legal aid has been granted,
(e) an investigation or inquiry under the Ombudsman Act 1974,
(f) the exercise by the Auditor-General of his or her functions under this Act or any other law,
(g) the carrying out by a person of any research approved by the Commission, being research carried out in a manner that ensures that the identity of an applicant for legal aid or a person to whom legal aid is granted is not disclosed to other persons,
(h) the divulging of information to a person concerning an application for legal aid made by or on behalf of the person (including such matters as the basis for the refusal of any such application),
(i) the divulging of information to a person to whom legal aid has been granted concerning the administration of the grant of legal aid,
(j) the divulging of information for the purpose of facilitating the conduct of alternative dispute resolution under Part 3A,
(k) the divulging of information obtained from a person, with the consent of that person, or
(l) the divulging, with the consent of the Commission, to any court or tribunal of information or a document concerning any of the following matters—
(i) whether or not an application for legal aid has been made by a particular person,
(ii) whether such an application was granted or refused,
(iii) the grounds on which such an application was granted or refused (including information as to the means of the applicant),
(iv) whether a person has appealed against the refusal of such an application.
5) The Commission, a committee established under this Act, the Chief Executive Officer or a member of staff of the Commission is not required to divulge to any person, court or tribunal the identity of a person from whom the Commission, the committee, the Chief Executive Officer or the member of staff receives information concerning—
(a) a breach or alleged breach of a condition on which legal aid has been granted or provided, or
(b) a breach or alleged breach of a requirement of this Act or the regulations (for example, a failure to notify the Commission of a change in the means or circumstances of a legally assisted person as required under section 38A (1)), or
(c) the commission or alleged commission of an offence in connection with the administration of legal aid.
(6) For the purposes of this section—
(a) an applicant for legal aid includes a person who requests legal advice but no other form of legal aid, and
(b) a person to whom legal aid is granted includes a person to whom that advice is given, and
(c) an application for legal aid includes a request for that advice.
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 Legal Aid NSW 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 Manager Inhouse Counsel.
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 Manager Inhouse Counsel
that a subpoena has been served.
Who is responsible for responding to subpoenas?
The Manager Inhouse Counsel 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 clauses 1 and 2 of 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.
(1) A person engaged in the administration of this Act must not divulge any information or document (including an application for legal aid) obtained in connection with the administration of legal aid.
Maximum penalty—50 penalty units or imprisonment for 6 months.
(2) This section does not prevent the divulging of information or a document if the information or document is divulged—
(a) in connection with the administration of legal aid, or
(b) as referred to in section 25 (4).
(3) This section does not limit the operation of section 25. Consequently, a member of the Board, a member of a committee established under this Act, the Chief Executive Officer or a member of staff of the Commission cannot be required to divulge any information or document merely because the divulging of the information or document is not prohibited by this section.
(4) For the purposes of this section, an application for legal aid includes a request for legal advice but no other form of legal aid.
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 secrecy provision that applies to all employees of Legal Aid NSW 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 s 25(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 s 25(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: s 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.
(1) An act or omission of—
(a) the Commission, the Chief Executive Officer or a member of staff of the Commission, or
(b) the Board or a member of the Board, or
(c) a committee established under this Act or a member of such a committee, or
(d) a person acting under the direction of a person or body referred to in paragraph (a), (b) or (c),
does not subject the Commission, the Chief Executive Officer, a member of staff, a member of the Board, a member of the committee or a person so acting to any action, liability, claim or demand if the act or omission was done, or omitted to be done, in good faith for the purpose of executing this Act.
(2) No liability attaches to or is incurred by the Commission, the Chief Executive Officer, a member of staff of the Commission, a member of the Board, a member of a committee established under this Act or a person acting under the direction of any of them because of anything done, or omitted to be done, by a law practice (including an associate of a law practice) to whom work is assigned under this Act.
(3) In this section, a reference to an act or omission includes (but is not limited to) a reference to anything done or omitted to be done in respect of—
(a) the engagement of a law practice for the provision of legal aid, or
(b) the assignment of work to a law practice, or
(c) an audit in respect of a law practice.
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
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.
(1) Where—
(a) in any proceeding, a document is required or permitted to be signed by a solicitor for a party to a proceeding who is an applicant for legal aid or a legally assisted person, and
(b) the Chief Executive Officer or a member of staff of the Commission is taking steps to conserve the interests of the applicant pending the determination of the application or is providing legal aid to the legally assisted person in relation to the proceeding,
the signature of the Chief Executive Officer, or of a member of staff of the Commission who is a solicitor and who, pursuant to a written authority given generally or specially by the Chief Executive Officer, is authorised to sign documents on behalf of the Chief Executive Officer for the purposes of this section, shall be deemed to be the signature of the solicitor for that party.
(2) If the Chief Executive Officer does not hold a current Australian practising certificate, a reference in subsection (1) 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.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.