Legal Aid Commission Act 1990

Several defined terms in section 3 are central to the operation of the Act. An "assisted person" is any person to whom legal aid is provided under the Act. "Legal aid" itself is defined as the provision of both "legal assistance" and "legal services". "Legal assistance" means any legal work or legal advice provided to a person. "Legal services" includes appearing on behalf of a person or giving legal advice in connection with a proceeding otherwise than by prior arrangement with the person. The "Commission" is Tasmania Legal Aid constituted under section 4. The "Director" is the Director of the Commission appointed under section 8, and includes any person appointed to act in that office. An "officer" is defined as a State Service officer or employee employed in the office of the Commission who is a legal practitioner. A "private legal practitioner" is defined as a person practising as a legal practitioner, amended by No. 36 of 2017. "Legal Aid Committee" means a committee established under section 12 to decide on applications and other matters. "Review Committee" means a committee established under section 30 to review decisions. "Guidelines" means guidelines issued by the Commission under section 27, which are to be applied in determining whether legal aid is provided, the conditions, the extent of costs payable against an assisted person, and the amount of costs required to be paid by an assisted person under section 25. The "Fund" is the Legal Aid Fund established under section 35. The "Law Society" means The Law Society of Tasmania continued under the Legal Profession Act 2007. "Chairperson" means the chairperson of the Commission, appointed under section 5(1)(a). "Court" includes a tribunal or person entitled to receive evidence on oath. "Current practising certificate" means a practising certificate in force under the Legal Profession Act 1993 (now the Legal Profession Act 2007 via amendment). Another key concept is the "assisted person's" obligation to pay costs: section 25 provides that an assisted person who is successful in any proceeding is liable to pay the ordinary professional costs of legal aid provided and any disbursements and expenses incurred. The Act also distinguishes between legal aid provided by an officer (in-house) and by a private legal practitioner arranged by the Commission (section 15).

The Act primarily affects three groups: the Commission and its officers, persons seeking or receiving legal aid (applicants and assisted persons), and private legal practitioners who provide services under the scheme. The Commission itself consists of five Commissioners appointed by the Minister under section 5(1): a chairperson (eligible if a former judge, former magistrate, or Australian lawyer of at least five years' standing), the Director, a person with substantial experience and expertise in financial management, a person with experience in business or government operations, and a person nominated by the Law Society. The Director is appointed under the State Service Act 2000 and must be an Australian lawyer (section 8(2)). Officers are State Service officers or employees who are legal practitioners (section 3 definition). Applicants for legal aid must be persons unable to afford the cost of obtaining legal assistance from private legal practitioners and it must be reasonable in all circumstances to provide legal aid (section 19(1)). The Act also affects persons associated with the applicant, such as a spouse or partner or a person financially responsible for the applicant, because the Commission must have regard to the income of such associated persons (section 19(2)(a) and (4)). Legal aid may be provided even if the assisted person's interests are adverse to the State or a public authority (section 20). Non-residents may receive legal aid only if it relates to a proceeding in a Tasmanian court or a matter arising under a Tasmanian law (section 19(3)). Private legal practitioners are affected by the requirement that the Commission keep a list of those willing to act (section 22). The Commission may refuse to include, remove, or limit a practitioner's name on the list, but only after giving written reasons and a reasonable opportunity to be heard; the practitioner may challenge such a decision in the Supreme Court within 28 days (section 22(5)). The allocation of work among listed private practitioners must be equitable and with regard to the nature of their practices, but the assisted person's interest and choice are paramount (section 23). Fees are determined after consulting the Law Society and must be less than ordinary professional costs so far as practicable (section 24). The Commission may defer or refuse fees if an investigation or proceedings against the practitioner relate to breach of the Act, fraud, or improper conduct (section 24(4)-(5)).

The Commission has a duty under section 6(2) to ensure legal aid is provided in the most effective, efficient and economical manner while having regard to the Fund's balance. It must issue guidelines (section 27) and directions for the allocation of work between officers and private legal practitioners (section 15(2)). It must issue directions for the classes of cases where applications are decided by a Legal Aid Committee or by an officer (section 17(2)). The Commission must notify applicants and their legal practitioners of decisions within 14 days (section 28) and provide written reasons upon request (section 28(3)). The Director must perform duties imposed under the Act and carry out instructions and decisions of the Commission (section 8(4)). Legal Aid Committees have the function to decide applications, decide other matters, and provide advice to private legal practitioners (section 14(1)). They may require reports or documents from private practitioners (section 14(2)). Applications for legal aid are made in a manner determined by the Commission (section 16(1)), and the applicant must provide required declarations and documents (section 16(2)). The decision on an application includes determining the nature and extent of legal aid, whether it is free or subject to conditions, and whether services are provided by a private practitioner or an officer (section 17(3)). An assisted person has the right to request review of a decision by an officer or Legal Aid Committee to a Review Committee within 14 days (section 29). The Review Committee must allow a reasonable opportunity for written submissions and documents (section 33(1)) and may permit oral address (section 33(2)). The Review Committee may confirm, vary, or set aside the decision and substitute another (section 34(1)); its decision is final, subject to the right to reapply if circumstances change (section 34(6)). An assisted person who is successful in proceedings must pay the ordinary professional costs of legal aid to the Commission (section 25(1)). The Director may direct the assisted person to take specific action to recover costs from the other party (section 25(2)), and the assisted person must pay the recovered amount to the Director (section 25(3)). The Director may also direct the assisted person to assign their rights to recover costs to the Commission (section 25(6)); failure results in deemed assignment (section 25(7)). An assisted person may request the Commission to pay costs awarded against them to the other party (section 26). Private legal practitioners have the right to be on the list of willing practitioners, subject to refusal or removal only after procedural fairness and with Supreme Court review (section 22). They are entitled to fees determined after consultation with the Law Society (section 24(1)), though fees may be deferred or refused if allegations of breach or fraud are substantiated (section 24(4)-(5)).

The Act creates one specific criminal offence in section 46: making a false or misleading statement or providing a false or misleading document in relation to an application for legal aid, knowing or believing it to be false or misleading. The penalty is a fine not exceeding 50 penalty units. Additionally, if a person is convicted and legal aid was granted, the court may order the person to pay the Commission an amount equal to the expenses incurred in providing that legal aid (section 46(2)). This is a civil remedy in addition to the criminal penalty. Section 47 provides that a certificate signed by the Director certifying that the Commission incurred expenses of a specified amount payable by a person under section 21 or 25 is evidence of those matters. This assists the Commission in recovering debts. Section 21(2)(b) states that any amount payable by an assisted person under a contribution condition is recoverable as a debt due to the Commission. Similarly, section 25(5) provides that the Commission may recover as a debt any amount an assisted person is liable to pay under section 25(3) (costs recovered). The Act also allows the Commission to defer or refuse payment of fees to a private legal practitioner if an investigation or proceeding is underway concerning an alleged breach of the Act or the Legal Profession Act 2007, fraud, misrepresentation, or improper conduct (section 24(4)-(5)). If the allegation is substantiated in criminal or disciplinary proceedings, the Commission may refuse to pay those fees entirely (section 24(5)). The regulations under section 52 may create offences for contravening regulations, with a fine not exceeding 10 penalty units, and for continuing offences a further fine of up to one penalty unit per day. The Act does not specify any other enforcement mechanisms beyond debt recovery and the offence provision. However, the Commission's ability to terminate or vary legal aid under section 18 acts as a quasi-enforcement tool: if a person fails to comply with conditions (e.g., pay contributions, provide information), the Commission may vary the decision to terminate aid. There is no express power to impose administrative penalties for non-compliance other than termination.

The Act explicitly references several other pieces of legislation. The Director and staff are appointed under the State Service Act 2000 (sections 8(1) and 10(1)). The Director must be an Australian lawyer; if the appointed Director does not hold a current practising certificate, they are deemed to hold such a certificate while in office (section 8(2)-(3)). Similarly, acting Directors who are Australian lawyers but lack a practising certificate are deemed to hold one (section 9(2)). The definition of "legal practitioner" was amended to mean an Australian legal practitioner, aligning with the Legal Profession Act 2007 (section 3). The Law Society is defined by reference to the Legal Profession Act 2007 (section 3). The Commission's ability to defer or refuse fees to a private practitioner can be triggered by an alleged breach of the Legal Profession Act 2007 (section 24(4)(a)(i)). Section 19(1)(ab) was omitted by amendment, and section 19(2A) was inserted by No. 26 of 2020 requiring the Commission to provide legal aid in accordance with section 8A of the Evidence (Children and Special Witnesses) Act 2001 if a judge orders assistance. Section 19(2)(j) also refers to limitations on the person's right to cross-examine a witness under section 8A of that Act. The definition of "partner" in section 19(5) refers to a personal relationship under the Relationships Act 2003. The Commission may invest money from the Fund in any of the ways referred to in section 5 of the Trustee Act 1898 (section 38). Money held on trust is similarly invested (section 39(2)). Transitional provisions in Schedule 3 refer to the Legal Assistance Act 1962 and the Australian Legal Aid Office. Schedule 4 deals with transitional provisions following the Legal Aid Commission Amendment Act 2016, and Schedule 5 deals with the Justice and Related Legislation (Miscellaneous Amendments) Act 2022 which renamed the Commission to Tasmania Legal Aid. The Act provides for exemption from duty, fees or charges under any Act for the Commission, a legal practitioner or an assisted person in relation to any action or proceeding for which legal aid is provided (section 51(1)). If costs are awarded to an assisted person, those costs are deemed to include any duty, fee or charge that would otherwise have been payable (section 51(2)). The Act's interaction with the general law of costs is also significant: section 25 and 26 govern the position of assisted persons in relation to costs orders. Section 25(8) deems assignment of rights to the Commission for recovery of costs, and section 26 deems any amount paid by the Commission to satisfy a costs order against an assisted person to have been paid by the assisted person.

The Act has been amended many times. Notable amendments include: No. 68 of 1994 (amended definition of "assisted person" and section 24); No. 40 of 1994 (inserted section 7(3) limiting Commission's power to appoint employees, and amended section 10); No. 17 of 1996 (inserted section 53A validating appointments); No. 32 of 1996 (amended Schedule 1 vacation of office to include incompetence); No. 62 of 1996 (amended section 37 regarding accounts); No. 86 of 2000 (amended definitions of "officer", substituted sections 8(1), 10, 53A, amended section 53A); No. 103 of 2000 (inserted section 10A on superannuation); No. 45 of 2003 (amended section 19(4) to include partner and inserted section 19(5)); No. 65 of 2005 (amended section 10A); No. 66 of 2007 (amended definitions of "Law Society", "legal practitioner", and section 24(4)); No. 50 of 2008 (repealed section 41, omitted section 40(2)); No. 63 of 2013 (amended section 19(1)(ab) and (2)); No. 37 of 2016 (amended section 5(1) reducing membership to five, inserted section 53B and Schedule 4); No. 54 of 2016 (substituted section 10A); No. 36 of 2017 (amended definitions of "chairperson", "private legal practitioner", and sections 5(2), 6(1)(e), 8(2), 9(1), 13(1)); No. 26 of 2020 (amended section 19(1), inserted subsection (2A)); No. 2 of 2022 (renamed the Commission from Legal Aid Commission of Tasmania to Tasmania Legal Aid, amended sections 3, 4(1), inserted section 53C and Schedule 5). The Act commenced on a day to be proclaimed (section 2). The extensive amendment history reflects evolving legal profession regulation, superannuation arrangements, and the need to streamline the Commission's membership and name.

The Act itself does not mention any specific case law. However, it provides for judicial review in one specific context: a private legal practitioner may apply to the Supreme Court within 28 days if the Commission refuses to list them, removes their name, or imposes limitations on their listing (section 22(5)-(8)). The Supreme Court may make the order applied for, any order it considers appropriate, postpone with liberty to apply, or dismiss the application (section 22(8)). This is the only explicit right of appeal to a court under the Act. Decisions of Review Committees are final under section 34(2), but this finality is not absolute: a person whose circumstances change may reapply for legal aid (section 34(6)). The Act does not oust judicial review by the Supreme Court on administrative law grounds (e.g., jurisdictional error, natural justice) because section 34(2) is subject to section 34(6) and does not explicitly exclude certiorari or other prerogative remedies. The immunity provision in section 49 protects members of the Commission, Legal Aid Committees, Review Committees and consultative committees from civil liability for acts or omissions done in good faith in performance of functions. This may affect the availability of tort claims against such members, but constitutional challenges are not precluded. The validation provisions in section 53A and Schedules 4 and 5 indicate that the legislature was mindful of potential challenges to appointments and sought to validate them retrospectively. No reported cases are referenced in the text, but practitioners should be aware that disputes over listing decisions, refusals of aid, and cost recovery likely generate litigation. Section 21(2)(b) provides for recovery of contributions as a debt, which may lead to civil proceedings in magistrates courts. The certificate under section 47 is admissible as evidence, facilitating such recovery actions. The deemed assignment provision in section 25(7)-(8) allows the Commission to sue in the assisted person's name for costs, which may also generate litigation. The Act does not create any other statutory rights of action.

Several provisions contain traps for applicants, assisted persons, private legal practitioners, and the Commission itself. For applicants: section 46 makes it an offence to knowingly make a false or misleading statement in an application, with a fine up to 50 penalty units. Even if the Commission grants aid based on a false statement, the court can order repayment of all expenses incurred by the Commission in providing that aid (section 46(2)). This is a double hit , a criminal fine plus restitution. For assisted persons: section 25(1) states that an assisted person who is successful in any proceeding is liable to pay the ordinary professional costs of any legal aid provided and any disbursements and expenses incurred. This means success does not result in a windfall; the Commission recovers its costs from the proceeds. Further, the Director may direct the assisted person to take specific action to recover costs from the other party (section 25(2)), and if the assisted person fails to comply with such a direction, the Director determines a lesser amount having regard to that failure (section 25(4)(b)). The Director may also direct the assisted person to assign their rights to recover costs to the Commission (section 25(6)). If the assisted person fails to assign within 28 days, they are deemed to have assigned the rights (section 25(7)), and the Commission steps into their shoes to sue using the assisted person's name (section 25(8)). This can surprise a successful assisted person who might expect to keep the costs award. Section 26 allows the Commission to pay costs awarded against an assisted person, but only if a request is made and determined in accordance with guidelines; there is no guarantee. For private legal practitioners: the Commission may defer or even refuse payment of fees if an investigation or proceeding is pending into alleged breach of the Act or the Legal Profession Act 2007, fraud, misrepresentation, or improper conduct (section 24(4)-(5)). This power is unilateral , the Commission can halt payments without a finding of wrongdoing, simply based on an investigation or proceeding. The practitioner must seek judicial review under section 22 if they are removed from the list, but the notice and opportunity provisions under section 22(4) only apply to listing decisions, not to fee deferral decisions under section 24. Another trap for practitioners: section 23(2) provides that in allocating work, the paramount considerations are the interest of the assisted person and any choice expressed by that person. This means a practitioner who expects equitable allocation under section 23(1) may be bypassed if the assisted person chooses another practitioner. For the Commission itself: section 19(2A) imposes a mandatory duty to provide legal aid if a judge makes an order under section 8A of the Evidence (Children and Special Witnesses) Act 2001 directing that an unrepresented defendant be given assistance. The Commission cannot refuse on financial grounds in such a case. The Commission must also ensure that its activities do not prejudice the independence of the private legal profession (section 6(2)(c)). This may limit how aggressively the Commission uses its in-house officers versus private practitioners. Another subtlety: section 44 deems the signature of the Director or an authorised officer to be a legal practitioner's signature for court documents where services are provided by an officer. This is an important procedural provision that ensures assisted persons represented by in-house lawyers are not disadvantaged by signature requirements.

Compliance with the Act depends on whether you are the Commission, an officer, a private legal practitioner, or an applicant. For the Commission: it must constitute itself as a body corporate with a common seal (section 4). The Commission must issue guidelines under section 27 covering eligibility, conditions for provision of legal aid, payment of costs awarded against an assisted person, and cost recovery from assisted persons. It must issue directions under section 17(2) for the classes of applications to be decided by Legal Aid Committees and by officers. It must establish Legal Aid Committees as necessary (section 12) and Review Committees (section 30). The Commission must keep a list of private legal practitioners willing to act (section 22(1)), allocate work equitably and with regard to the assisted person's interest and choice (section 23), and keep records of matters handled by practitioners (section 23(3)). In determining fees for private practitioners, the Commission must consult the Law Society and take into account its views, ensuring fees are less than ordinary professional costs (section 24). The Commission must also open and maintain at least one account in an authorised deposit-taking institution in Tasmania (section 37(1)), pay all money received into that account (section 37(2)), ensure trust money is kept in a separate account (section 37(4)), and keep proper accounts and records (section 40(1)). It must submit annual estimates of expenditure and revenue by 31 May each year (section 42(1)), and not expend funds otherwise than in accordance with approved estimates (section 42(3)). It must submit an annual report by 31 October (section 48). The Commission must notify applicants of decisions in writing within 14 days (section 28) and provide written reasons on request. The Commission must issue directions for the allocation of work between officers and private practitioners (section 15(2)), and ensure that officers observe the same rules of professional conduct and ethics as private legal practitioners (section 11(1)). For the Director: must perform duties imposed and carry out Commission instructions (section 8(4)). The Director may delegate functions and powers, but the power of delegation cannot be delegated further (section 50). For private legal practitioners: they must notify the Commission if willing to act (section 22(1)). If listed, they must comply with the Commission's directions and submit reports or documents as required by a Legal Aid Committee (section 14(2)). They must submit accounts for work done; those accounts may be referred to a Legal Aid Committee to determine proper payment (section 24(3)). They should be aware that fees can be deferred or refused if an investigation is underway for breach, fraud or improper conduct (section 24(4)-(5)). For applicants: they must apply in the manner determined by the Commission and provide all required declarations and documents (section 16). They must not make false or misleading statements (section 46). If granted legal aid subject to a contribution condition, they must pay as determined (section 21). If successful in proceedings, they must pay the costs of legal aid (section 25(1)) and must comply with any direction to take action to recover costs from the other party (section 25(2)). They must also pay to the Commission any costs recovered (section 25(3)). Failure to comply may result in variation or termination of aid (section 18) and debt recovery (section 25(5)). If an assisted person wants the Commission to pay costs awarded against them, they must make a request under section 26(1) in accordance with guidelines. For all parties: the Act provides for delegation (section 50), which should be done in writing. Members of the Commission, Legal Aid Committees, and Review Committees must disclose pecuniary interests (Schedule 2 clause 6).