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Legal Aid Act 1995 (NI)

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Act No. 10 of 1995
Act Applied Law as amended, incorporating amendments up to Norfolk Island Continued Laws Ordinance 2015 (No. 2, 2015)
This is an Act of the previous Norfolk Island Legislative Assembly that was continued in force under s16 and 16A of the Norfolk Island Act 1979.
Administered by: Infrastructure, Regional Development and Cities
Registered 31 Oct 2018
Start Date 29 Sep 2018

 

NORFOLK                            ISLAND

 

Legal Aid Act 1995

No. 10, 1995

Compilation No. 3

Compilation date:                              29 September 2018

Includes amendments up to:                Norfolk Island Continued Laws Ordinance 2015 (No. 2, 2015)

 

 


 

 

 

NORFOLK                            ISLAND

 

 

LEGAL AID ACT 1995

 

TABLE OF PROVISIONS

PART 1  —  PRELIMINARY

      1.         Short title

      2.         Commencement

      3.         Interpretation

      3A.      Objects

 

PART 3  —  PROVISION OF LEGAL ASSISTANCE

      12.       Legal assistance

      13.       Application for legal assistance

      14.       Guidelines for provision of assistance

      15.       Legal assistance in proceedings before prescribed courts

      16.       Determination of application for assistance

      17.       Reconsideration of decision

      18.       Circumstances in which legal assistance may be provided

      19.       Termination or variation of legal assistance

      20.       Assistance to persons having interests adverse to the Administration, etc

      21.       Contribution towards costs and expenses

      22.       Entitlement of legally assisted persons to costs in proceedings

      23.       Payment of costs awarded against legally assisted persons

 

PART 4  —  LEGAL AID FUND

      24.       Establishment of Fund

      25.       Payment of interest accruing on trust accounts

      26.       Application of Fund


 

PART 5  —  MISCELLANEOUS

      27.       Immunity

      28.       Secrecy

      29.       False or misleading statements

      30.       Certificates as to amounts owing to the Administration

      32.       Delegation

      33.       Regulations


 

NORFOLK                            ISLAND

 

 

 

Legal Aid Act 1995

 

An Act relating to the provision of legal assistance.

 

BE IT ENACTED by the Legislative Assembly of Norfolk Island as follows —

PART 1  —  PRELIMINARY

Short title

      1.         This Act may be cited as the Legal Aid Act 1995.

Commencement

      2.         This Act commences on 1 July 1995.

Interpretation

      3.         In this Act unless the contrary intention appears —

      “approved” means approved in writing by the Minister;

      “Fund” means the Legal Aid Fund established by section 24;

      “providing agency” means the Legal Aid Commission (A.C.T.) or such other organisation or person prescribed for the purposes of this definition;

      “Public Account” means the Public Account of Norfolk Island established by section 47 of the Norfolk Island Act 1979 of the Commonwealth;

Objects

      3A.      The objects of the Act are as follows —

                  (a)        to  provide legal aid in accordance with this Act;

                  (b)        to provide, in a responsible, equitable and caring manner, legal aid of a high quality which includes wherever practicable, legal assistance and representation, legal advice, duty lawyer services, and legal education, for all persons who have a need for, but are unable to afford the cost of obtaining those services;

 

 


                  (c)        to provide general community legal education and information;

                  (d)       to raise the level of awareness of the laws of Norfolk Island;

                  (e)        to ensure, as far as possible, that disadvantaged persons in Norfolk Island have access to its law and legal system that is no less than the access enjoyed by other persons in Norfolk Island;

                  (f)        to recognise the independent legal system of Norfolk Island and the need for consultation in a timely manner on matters relevant to the provision of legal aid;

                  (g)        to make maximum use of services which private legal practitioners offer to provide on a voluntary basis;

                  (h)        to liaise, and co-operate, and to make reciprocal arrangements, with professional bodies representing private legal practitioners and other bodies engaged or interested in the provision of legal aid and to participate with those bodies in the development and delivery of legal aid;

                  (j)         to ascertain the most efficient, economical and effective means of providing legal aid, and of allocating work, or grants of aid to private practitioners acting on behalf of persons eligible to receive legal aid;

                  (k)        to provide legal aid which, as far as practicable  —

                              (i)   is accountable;

                              (ii)  does not interfere in the solicitor and client relationship; and

                              (iii) is limited to persons in financial and certain defined legal need.

PART 3  —  PROVISION OF LEGAL ASSISTANCE

Legal assistance

      12.       For the purposes of this Part, legal assistance is —

                  (a)        legal services provided by a providing agency; or

                  (b)        such other legal services, assistance or advice as the Minister may determine; and

(c)        such grants as determined by the Minister having regard to all the facts involved.

Application for legal assistance

      13.       (1)        An application for legal assistance shall be made to the Minister in writing and shall be substantially in accordance with an approved form and contain such information as required by that form.

                  (2)        The Minister may, in special circumstances, treat an application that does not comply with all the requirements of subsection 13(1) as having been duly made.

                  (3)        An applicant for legal assistance under subsection 13(1) shall provide to the Minister such declarations, certificates or other documents or such other information as the Minister requires for the purpose of enabling a decision to be made whether legal assistance should be granted in respect of the application.

                  (4)        The declarations, certificates, documents or other information referred to in subsection 13(3) includes any document or communication that would normally be the subject of legal professional privilege.

Guidelines for provision of assistance

      14.       The Minister may determine guidelines to be applied —

                  (a)        for the purpose of determining whether legal assistance may be provided to a person under this Act; and

                  (b)        in determining whether the grant of legal assistance to a person will be subject to conditions; and

                  (c)        in determining the extent (if any) to which costs awarded against a legally assisted person in any proceedings will be paid out of the Fund; and

                  (d)       in determining the amount of costs or disbursements that a legally assisted person who has been successful in the proceedings in respect of which the assistance was provided, will be required to pay into the Fund.

Legal assistance in proceedings before prescribed courts

      15.       (1)        Legal assistance is not available in relation to proceedings in a court or tribunal other than a prescribed court.

                  (2)        In this section, “prescribed court” means —

                  (a)        the Court of Petty Sessions; or

                  (b)        the Supreme Court; or

                  (c)        the High Court of Australia and the Federal Court of Australia; or

                  (d)       the Family Court of Australia; or

                  (e)        the Administrative Appeals Tribunal (Commonwealth), the Mental Health Tribunal established under the Mental Health Act 1996, and the Employment Tribunal established under the Employment Act 1988; or

                  (ea)      the Commissioner when reviewing a grievance or the Commissioner or a review delegate when constituting an appeal board to hear an appeal about inability, performance or disciplinary decisions under the provisions of the Public Service Act 2014; or

                  (f)        another court or tribunal prescribed for the purposes of this section;

                               and

(g)        the Minister may prescribe another Court or Tribunal by notice published in the Gazette.

Determination of application for assistance

      16.       (2)        An application for legal assistance shall be decided by the Minister in accordance with guidelines made under section 14.

                  (4)        The Minister shall decide, in accordance with any guidelines made under section 14, whether the legal assistance is to be provided subject to any conditions.

                  (5)        A decision under subsection 16(2) shall be communicated in writing to the applicant within 14 days of the making of the decision.

                  (6)        Where the Minister has refused an application for legal assistance or imposed conditions on the provisions of legal assistance, the Minister shall, when advising the applicant of the decision, include a short statement of reasons for the decision, setting out the findings on material questions of fact and referring to the evidence or other material on which those findings were based.

Reconsideration of decision

      17.       (1)        An applicant for legal assistance who is dissatisfied with a decision of the Minister under section 16 or 19 may request that the Minister reconsider the Minister’s decision.

                  (2)        An application under subsection 17(1) shall be in writing and in the approved form.

                  (3)        The Minister shall consider the submission and material submitted under subsection 17(2) and either confirm or vary the previous recommendation or decision.

                  (4)        An applicant cannot seek a further reconsideration of a decision under subsection 17(3).

                  (5)        Subject to subsection 17(6), a request under subsection 17(1) for a reconsideration of a decision shall be made within 28 days after the person received notice of the decision under section 16 or 19.

                  (6)        Where the Minister is satisfied that the failure to make a request within the period specified in subsection 17(5) was due to a reasonable cause he or she may extend that period by a further period not exceeding 28 days.

Circumstances in which legal assistance may be provided

      18.       (1)        Subject to this section, legal assistance may be provided to a person under this Act if —

                  (a)        the person is in need of that legal assistance by reason that —

                              (i)   he or she is unable to afford the cost of obtaining from private legal practitioners the legal services in respect of which legal assistance is sought; or

                              (ii)  he or she is unable to obtain from private legal practitioners on Norfolk Island the legal services in respect of which legal assistance is sought; and

                  (b)        it is reasonable in all the circumstances to provide the legal assistance.

                  (2)        In the making of a decision whether a person is in need of legal assistance by reason that he or she is unable to afford the cost of obtaining from private legal practitioners the legal services in respect of which the legal assistance is sought, regard shall be had to all relevant matters, including the following matters:

                  (a)        the income of the person; and

                  (b)        the cash that is readily available to the person or can be made available; and

                  (c)        the debts, liabilities and other financial obligations of the person;  and

                  (d)       the cost of living; and

                  (e)        the cost of obtaining the legal services from private legal practitioners; and

                  (f)        any other matter affecting the ability of the person to meet the cost of obtaining the legal services from private legal practitioners.

                  (3)        In the making of a decision whether it is reasonable in all the circumstances to provide legal assistance to a person, regard shall be had to all relevant matters, including —

                  (a)        the nature and extent of any benefit that may accrue to the person, to the public or to any section of the public from the provision of the assistance or of any detriment that may be suffered by the person, by the public or by any section of the public if the assistance is not provided; and

                  (b)        in the case of assistance in relation to a proceeding in a court or before a tribunal —  whether the proceeding is likely to terminate in a manner favourable to the person; and

                  (c)        the amount of moneys for the time being standing to the credit of the Fund and any moneys likely to be received into the Fund.

                  (4)        Legal assistance may be provided under this Act to a body corporate in special circumstances determined by the Minister, but not otherwise.

Termination or variation of legal assistance

      19.       A decision to provide legal assistance to a person under this Act may be varied at any time to —

                  (a)        terminate the provision of the legal assistance; or

                  (b)        alter the nature or extent of the legal assistance; or

                  (c)        make the provision of legal assistance subject to a condition; or

                  (d)       alter a condition to which the provision of the legal assistance is subject.

Assistance to persons having interests adverse to the Administration, etc

      20.       Legal assistance may be provided under this Act to a person in relation to any proceeding or matter notwithstanding that the interests of that person are, or may be, adverse to the interests of the Administration, the interests of the Commonwealth or the interests of an authority or body established for a public purpose by or under a law of Norfolk Island or the Commonwealth.

Contribution towards costs and expenses

      21.       (1)        The grant under this Act of legal assistance to a person may be on the basis that the person pay into the Fund an amount, or a proportion of the costs, specified by the Minister, towards the cost of providing the assistance.

                  (2)        The Minister may specify an amount under subsection 21(1) that represents the total cost of providing the assistance.

                  (3)        An amount required to be paid by a legally assisted person under this section shall be paid in such manner as the Minister directs.

                  (4)        A direction under subsection 21(3) may require that an amount be paid into the Fund by the providing agency in relation to the legally assisted person, out of moneys recoverable on behalf of that person.

                  (5)        If a person who is or has been a legally assisted person has not paid an amount payable into the Fund under this section, the amount is recoverable by the Administration by action in a court as a debt due and payable to the Administration.

                  (6)        Where —

                  (a)        the Minister has directed that an amount be paid into the Fund by the providing agency in relation to the legally assisted person out of moneys recoverable by the providing agency on behalf of the person; and

                  (b)        the Minister has notified the providing agency of the direction; and

                  (c)        the providing agency recovers an amount on behalf of the legally assisted person,

the providing agency shall pay into the Fund —

                  (d)       if the amount recovered is less than the amount referred to in paragraph 21(6)(a) —  an amount equal to the amount recovered; or

                  (e)        in any other case  —  an amount equal to the amount referred to in paragraph 21(6)(a).

                  (7)        An amount paid by the providing agency in relation to a legally assisted person under this section shall be taken, for the purposes of subsection 21(5), to have been paid by the legally assisted person.

Entitlement of legally assisted persons to costs in proceedings

      22.       (1)        For the purposes of the making or enforcement of any order for costs, or the determination of any entitlement to costs, in a proceeding before a court or tribunal to which a legally assisted person is a party, that person shall be deemed to be liable to pay the ordinary professional costs (including barristers’ fees) of the legal services provided to him or her in, or in connection with, that proceeding and any disbursement and out-of-pocket expenses incurred in, or in connection with, the provision of those services.

                  (2)        Where an amount is recoverable by a legally assisted person (whether in a proceeding or by virtue of a settlement or compromise) in respect of the matter in which the legal assistance was given, the person is liable to pay into the Fund an amount equal to so much of that amount as the Minister, having regard to guidelines determined under section 14, determines, but the amount so determined shall not exceed the sum of the amount of —

                  (a)        the ordinary professional costs (including solicitor and client costs and barristers’ fees) of the legal services provided to the person in the proceeding or matter in respect of which legal assistance was provided; and

                  (b)        any disbursements and out-of-pocket expenses incurred in or in connection with the provision of those services.

                  (3)        In determining the amount that a legally assisted person is liable to pay under subsection 22(2), the Minister shall have regard to —

                  (a)        the amount actually recovered by the legally assisted person; and

                  (b)        any failure by the legally assisted person to take action to recover the amount recoverable, including any failure to comply with a direction under subsection 22(4).

                  (4)        The Minister may give directions to a legally assisted person requiring the person to take specified action to recover an amount that is recoverable by the person in respect of the matter in which legal assistance was given.

                  (5)        Where an amount is recoverable by a legally assisted person (whether in a proceeding or by virtue of a settlement or compromise) in respect of the matter in which the legal assistance was given, the Minister may direct the legally assisted person to assign the right to recover the amount to the Administration.

                  (6)        Where after 3 months a legally assisted person has failed to comply with a direction under subsection 22(5) to assign to the Administration the right to recover an amount, the legally assisted person shall be deemed to have assigned to the Administration the right to recover the amount.

                  (7)        Where a right to recover an amount is assigned to the Administration in pursuance of a direction under subsection 22(5), or is to be deemed to be assigned in accordance with subsection 22(6), the Administration shall, for the purpose of recovering the amount, stand in the place of the legally assisted person and may use the name of the legally assisted person and all remedies which would, but for the assignment, be available to the legally assisted person in any proceedings to recover the amount.

                  (8)        The amount that a person is liable to pay into the Fund under subsection 22(2) is recoverable by the Administration by action in a court as a debt due and payable to the Administration.

Payment of costs awarded against legally assisted persons

      23.       (1)        Where —

                  (a)        legal assistance is provided under this Act to a person in relation to a proceeding instituted by that person in a court or before a tribunal; and

                  (b)        the court or tribunal makes an order in the proceeding directing the legally assisted person to pay costs incurred by another party to the proceeding,

either the legally assisted person or that other party may request the Minister to pay to that other party, on behalf of the legally assisted person, an amount out of the Fund representing the whole or a part of the costs that the legally assisted person was so directed to pay.

                  (2)        A request under subsection 23(1) shall be decided in accordance with guidelines determined under section 14.

                  (3)        An amount paid by the Minister under this section shall be deemed to have been paid by the legally assisted person.

PART 4  —  LEGAL AID FUND

Establishment of Fund

      24.       (1)        A fund called the Legal Aid Fund is established within the Public Account.

                  (2)        The Fund consists of —

                  (a)        moneys paid into the Fund or recovered by the Administration under this Act; and

                  (b)        moneys paid into the Fund, being money appropriated from the Public Account for the purposes of this Act; and

                  (c)        income derived from the investment of moneys forming part of the Fund; and

                  (d)       moneys paid into the Fund by banks under section 25; and

                  (e)        any other moneys paid to the Administration for the purposes of the provision of legal assistance or otherwise for the purpose of the Fund.

                  (3)        For the purposes of subsection 47(5) of the Norfolk Island Act 1979 of the Commonwealth, the provision of legal assistance is the purpose for which the revenues raised by virtue of this Act are to be used.

Payment of interest accruing on trust accounts

      25.       (1)        Interest accruing on a trust account maintained by a legal practitioner, a real estate agent or an accountant at a bank on Norfolk Island shall be paid by the bank concerned into the Fund.

                  (2)        Subsection 25(1) does not apply to a separate trust account maintained by the legal practitioner, real estate agent or accountant for the exclusive benefit of a particular client or particular clients.

Application of Fund

      26.       (1)        Moneys in the Fund shall be applied only in the discharge of the objects, obligations and liabilities arising under this Act.

                  (2)        Moneys standing to the credit of the Fund may be invested in —

                  (a)        securities of, or guaranteed by, the Commonwealth or a State or Territory; or

                  (b)        fixed deposits in a bank; or

                  (c)        investments authorised in writing by the Minister.

PART 5  —  MISCELLANEOUS

Immunity

      27.       No action, suit or proceeding lies against a person in relation to an act done or omitted to be done in good faith in the performance or purported performance of a function under this Act.

Secrecy

      28.       (1)        A person who is, or has been, an employee in the public service shall not, either directly or indirectly, except for the purposes of this Act —

                  (a)        make a record of, or divulge or communicate to any person, any information concerning the affairs of another person acquired by the person in the performance of a function under this Act; or

                  (b)        produce to any person a document relating to the affairs of another person furnished for the purposes of this Act.

      Penalty:     10 penalty units or imprisonment for 12 months, or both.

                  (2)        An employee in the public service shall not be required to produce before a court any document relating to the affairs of another person of which he or she has custody, or to which he or she has access, by virtue of his or her office or employment under or for the purposes of this Act, or in the performance of a function under this Act, or to divulge or communicate to any court any information concerning the affairs of another person obtained by reason of such an office or employment or in the performance of such a function.

                  (4)        Subsection 28(2) does not apply if the court considers that it is necessary in the interests of justice that the document be produced or the information be divulged or communicated.

                  (5)        This section does not affect any law or any rule of practice or procedure relating to the discovery of documents in a proceedings in respect of which legal assistance is provided to a person under this Act.

                  (6)        This section does not apply to the divulgence or communication of information, or the production of a document, concerning the affairs of a person —

                  (a)        for the purpose of facilitating the investigation or prosecution of an offence against this Act; or

                  (b)        with the express or implied consent of that person.

False or misleading statements

      29.       (1)        A person shall not —

                  (a)        make, whether orally or in writing, a false or misleading statement in connection with, or in support of, an application for legal assistance; or

                  (b)        furnish to the Minister in connection with an application for legal assistance, a document that is false or misleading in a material particular.

      Penalty:     10 penalty units or imprisonment for 12 months, or both.

                  (2)        Where —

                  (a)        a person is convicted of an offence against subsection 29(1) in respect of an application for legal assistance; and

                  (b)        legal assistance under this Act was granted on that application; and

                  (c)        expenses were incurred by the Administration in providing that legal assistance,

the court may, in addition to imposing a penalty in respect of the offence, order the person to pay to the Administration an amount equal to the amount of those expenses incurred.

                  (3)        For the purposes of subsection 29(2), a certificate in writing signed by the Minister certifying that the Administration incurred expenses of an amount specified in the certificate in providing legal assistance on an application identified in the certificate is prima facie evidence of the matters stated in the certificate.

Certificates as to amounts owing to the Administration

      30.       In any action against a person for the recovery of an amount payable to the Administration under section 21 or 22, a certificate in writing signed by the Minister, certifying that the sum specified in the certificate was, at the date of the certificate, payable by the person to the Administration under that section is prima facie evidence of the matters stated in the certificate.

Delegation

      32.       The Minister may, in writing, delegate all or any of his or her powers under this Act, other than this power of delegation, to an employee in the public service.

Regulations

      33.       (1)        The Administrator may make Regulations, not inconsistent with this Act, prescribing all matters —

                  (a)        required or permitted by this Act to be prescribed; or

                  (b)        necessary or convenient to be prescribed for carrying out or giving effect to this Act.

                  (2)        The Regulations may make provision for penalties by way of a fine not exceeding 5 penalty units for offences against the Regulations.

 


 

NOTES

The Legal Aid Act 1995 as shown in this consolidation comprises Act No. 10 of 1995 and amendments as indicated in the Tables below.

Enactment

Number and year

Date of commencement

Application saving or transitional provision

Legal Aid Act 1995

10, 1995

1.7.95

 

 

 

 

 

Legal Aid Amendment Act 2005

9, 2005

29.4.05

 

 

[Previously consolidated as at 17 May 2005]

 

Interpretation (Amendment) Act 2012

[to substitute throughout —Commonwealth Minister for Minister; and to substitute Minister for executive member]

14, 2012

28.12.12

 

 

[Previously consolidated as at 2 July 2013]

 

Public Service Act 2014

11, 2014

Sch 3 (item 3): 23 Dec 2014

 

 

 

 

 

 

Ordinance

Registration

Commencement

Application, saving and transitional provisions

Norfolk Island Continued Laws Amendment Ordinance 2015
(No. 2, 2015)
(now cited as Norfolk Island Continued Laws Ordinance 2015 (see F2015L01491))

17 June 2015 (F2015L00835)

Sch 1 (items 194–197, 344, 345): 18 June 2015 (s 2(1) item 1)

Sch 1 (items 344, 345, 382–390)

as amended by

 

 

 

Norfolk Island Continued Laws Amendment (2016 Measures No. 2) Ordinance 2016
(No. 5, 2016)

10 May 2016 (F2016L00751)

Sch 4 (items 34, 35): 1 July 2016 (s 2(1) item 4)

Norfolk Island Continued Laws Amendment (Statutory Appointments and Other Matters) Ordinance 2018

28 Sept 2018 (F2018L01378)

Sch 1 (items 29–31): 29 Sept 2018 (s 2(1) item 1)

 

Table of Amendments

 

ad = added or inserted

am = amended

rep = repealed

rs = repealed and substituted

Provisions affected

How affected

3

am

11, 2014; Ord No 2, 2015 (as am by Ord No 5, 2016 and F2018L01378)

3A

ad

9, 2005

Part 2

rep

Ord No 2, 2015 (as am by F2018L01378)

4

rep

Ord No 2, 2015 (as am by F2018L01378)

5

rep

Ord No 2, 2015 (as am by F2018L01378)

6

rep

Ord No 2, 2015 (as am by F2018L01378)

7

rep

Ord No 2, 2015 (as am by F2018L01378)

8

rep

Ord No 2, 2015 (as am by F2018L01378)

9

rep

Ord No 2, 2015 (as am by F2018L01378)

10

am

9, 2005

 

rep

Ord No 2, 2015 (as am by F2018L01378)

11

rep

Ord No 2, 2015 (as am by F2018L01378)

12

am

9, 2005

13

am

Ord No 2, 2015 (as am by F2018L01378)

14

am

Ord No 2, 2015

15

am

9, 2005; 11, 2014

16

am

9, 2005; Ord No 2, 2015 (as am by F2018L01378)

17

am

Ord No 2, 2015 (as am by F2018L01378)

26

am

9, 2005

27

am

Ord No 2, 2015 (as am by F2018L01378)

28

am

Ord No 2, 2015 (as am by Ord No 5, 2016 and F2018L01378)

29

am

Ord No 2, 2015 (as am by F2018L01378)

31

rep

Ord No 2, 2015 (as am by F2018L01378)

32

am

Ord No 2, 2015 (as am by Ord No 5, 2016)

Note – for the ease of use, 15(2)(da) is now known as 15(2)(e); and the former 15(2)(e) (prior to commencement of amending Act 9 of 2005), is now known as 15(f).