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Seat of Government (Administration) Act - Ordinances - Legal Aid Ordinance - Legal Aid Committee of the Australian Capital Territory - Report and financial statement, together with the auditor's report - Period - 1 March to 30 June 1972


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T H E P A R L IA M E N T O F T H E C O M M O N W E A L T H O F A U ST R A L IA

1974—Parliamentary Paper No. 183

LEGAL AID COMMITTEE OF THE AUSTRALIAN CAPITAL TERRITORY

REPORT FOR PERIOD 1 March 1972 to 30 June 1972

Presented pursuant to Statute 22 October 1974

Ordered to be printed 31 October 1974

THE GOVERNMENT PRINTER OF AUSTRALIA

CANBERRA 1975 >\

Printed by Kerton Bros (S.A.) Pty Ltd, Edwardstown, S.A.

AUSTRALIAN CAPITAL TERRITORY

LEGAL AID ORDINANCE 1972

THE ATTORNEY-GENERAL

LEGAL AID COMMITTEE OF THE AUSTRALIAN CAPITAL TERRITORY

REPORT OF THE OPERATIONS OF THE COMMITTEE FOR THE PERIOD ENDING 30 JUNE 1972

Introduction of Ordinance The Legal Aid Ordinance of this Territory was introduced on March 1972, and this report covers the period from that date until the end of the financial year, 30 June 1972.

The Legal Aid Committee The Attorney-General, acting pursuant to Sections 7 and 8 of the Ordinance, appointed the following persons as members of the Committee, and appropriate Deputies to those members:

(i) Member — Mr J. D. Button Deputy Member — Mr D. J. Crossin (ii) Member — Mr B. R. Gallen

Deputy Member — Mr J. D. Donohue (iii) Member — Mr A. R. M. Watson Deputy

Member — Mr G. M. Wheeler The appointments made by the Attorney-General were for a period of one year commencing on 1 March, 1972. Messrs Button, Gallen, Crossin and Donohue are Barristers and Solicitors

in private practice in the Territory, and were persons amongst others in a panel of Barristers and Solicitors nominated by the Law Society. Messrs Watson and Wheeler are Barristers and Solicitors of the Supreme Court of this Territory, and are Officers of the Attorney-General’s Department. Both

of these latter Officers have had considerable experience in administering what was known as the Interim Legal Aid Scheme prior to the introduction of the Ordinance. Reference will be made later to this Interim Legal Aid Scheme.

Mr J. D. Button was appointed Chairman of the Committee at its first meeting on 1 March 1972.

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Staff of the Committee On 1 March 1972 the Committee appointed Mrs H. Berryman, a Barrister and Solicitor of the Supreme Court of this Territory, as its Secretary. This appointment was made pursuant to Section 18 of the Ordinance. Mrs Berryman at that time was employed by the Law Society as its Executive Officer.

On the same day the Committee also appointed Mrs J. O’Leary as Typist/Receptionist. The Office of the Committee was situated at the Winston Churchill Memorial Trust Building, Northbourne Avenue, Canberra City. It shared accommodation with the Law Society.

HISTORY OF LEGAL AID IN THE TERRITORY LEADING UP TO THE ORDINANCE

Prior to the introduction of the Ordinance in March 1972, the Poor Prisoners Defence Act, 1907 of the State of New South Wales in its application to the Territory, the Commonwealth Judiciary Act, in the forma pauperis provisions in the Supreme Court Rules, the Court Martial Appeal Regulations and the

Court Martial provisions in Section 96 of the Defence Act, were the statutory provisions for legal aid in the Territory. In effect there was no provision for aid in most civil cases and little in criminal matters. Persons were, however, represented by the legal profession either without charge or for a heavily reduced fee, at no cost whatever to public funds. In the early 1960s after the Law Society had discussions with the Attorney-General’s Department, there was then an approach made to the Commonwealth Treasury which agreed to an ex gratia scheme to cover gaps in criminal aid and to enable aid to be provided in civil cases for destitute persons where -a serious need could be shown.

The scheme certainly improved the position but was far from satisfactory, as decisions were made on an ad hoc basis depending on the merits of each particular case as it arose. It continued in operation, as well as the aid granted by the legal profession, at a nil or substantially reduced fee basis as indicated previously, until there was evolved in 1968 what came to be known as the Interim Legal Aid Scheme.

The Interim Legal Aid Scheme was novel then, but served further to demonstrate the need for a comprehensive statutory scheme. It introduced assistance for more serious summary cases along the lines recommended by Lord Justice Widgery (as he then was) in England in 1964.

It also made provision for aid to be granted in matrimonial matters, but this was limited by a severe mathematical means test, and in any event was only available if the applicant could show a really serious need for taking action in the Matrimonial Causes Jurisdiction in cases:

(a) where interests in property were in issue in the divorce proceedings, as, for example, where possession or ownership of a jointly-owned matrimonial home was in issue; (b) where the ground or one of the grounds of the divorce was cruelty

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and it was in the immediate interest of the petitioner that a divorce be obtained; (c) where the interest of the children of the marriage would be substantially affected if a divorce was not obtained.

A copy of the rules of the Interim Legal Aid Scheme which was administered by your Department is Schedule One to this report. The Law Society was still concerned to see that there was introduced a scheme which included the wider benefits of the United Kingdom scheme, not only with legal aid in all jurisdictions on a very wide basis administered by a statutory committee, but also with legal advice as and where necessary to those who were unable to afford it in the ordinary way, directly from the profession. At the same time note was being taken of increasing benefits becoming available in other schemes throughout Australia. Over the years

prior to the introduction of the present Ordinance, the Law Society had a Legal Aid Committee which kept close liaison with the Attorney-General’s Department. ,

The Present Scheme (A) The main features of the present scheme are:

(i) Aid can be granted in criminal and civil matters. This is provided for in Parts V and VI of the Ordinance. (ii) In all cases an applicant for aid must complete an application form for legal aid in writing, and lodge it with the Committee. (iii) The aid which can be granted in criminal matters and appeals in

criminal cases is without limitation to the type of matter so far as the Supreme Court is concerned but in appeals to or from that Court the Committee must be satisfied, pursuant to Section 31, that there are reasonable prospects of the appeal or application for leave to appeal being successful. In the Court of Petty Sessions aid can be granted in criminal proceedings in that Court in the circumstances set forth in

Section 29. Aid may also be granted in respect of matters coming within the ambit of Section 30. (iv) In civil matters the Committee may grant aid in any Court in the Territory, provided the applicant satisfies the Committee in terms of

Sections 33 and 34. (v) There is no residential qualification for aid—the matter must only be maintainable in a Court or Tribunal in the Territory, or on

appeal therefrom. (vi) The scheme is basically a contributory scheme, and the Committee is bound to determine what, if any, contribution should be made by an applicant in any matter. (vii) The Committee may vary or cancel the grant of legal aid—see Part

VIII of the Ordinance. (viii) Payment to the legal profession for services rendered in aid matters is on a reduced fee basis. In criminal matters the Attorney-General

has promulgated a scale of fees under Section 57. In civil matters a Barrister and Solicitor acting as a Solicitor for a legally aided person

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is paid an amount equal to seven-tenths of a Solicitor and Client costs—See Section 58. A Barrister and Solicitor performing work as a Barrister for a legally assisted person in a civil matter is entitled to be paid out of the Legal Aid Fund an amount equal to four-fifths of

Counsel’s normal fee—see Section 59.

(B) What could perhaps be described as its unique features are:

(a) a small salaried office staff; (b) volunteer Committee members from the legal profession; (c) assigned legal aid work is carried out by legal practitioners as part of their ordinary business; (d) the profession has undertaken to accept remuneration, paid directly

by the Committee, on a reduced-fee basis (which is 70 per cent of a normal solicitor and client rate in civil matters and approximately 66% per cent of a moderate solicitor and client fee in criminal matters); (e) applicants contribute towards these reduced costs, depending on

their financial situation; (f) a good response from local practitioners in taking work under the scheme; (g) the emphasis is on the prompt despatch of business and on a

reliance as far as possible on the professional judgment of the participating practitioners; (h) accommodation and office staff are shared with the Law Society of the Australian Capital Territory;

(i) there is no residential qualification for aid; (j) there are only a small number of matters excluded from aid.

The Mode in which the Committee operates The general nature of the scheme was made public by the Attorney- General a month or so prior to the coming into operation of the Ordinance and discussions were then held between his Department and the Law Society regarding the implications of the Ordinance. The Attorney-General’s statement is Schedule 2 hereto. Numerous meetings were held by the persons who were to constitute the Committee and in the time available all preliminary work was carried out. This included the drafting, settling and printing of the first forms of application. They were distributed on 29 February 1972 together with the Committee’s first information circular. A copy of that circular comprises Schedule 3 hereto. The Committee is happy to report that on 1 March 1972, the date the Ordinance commenced, it was ready to operate. Several other steps were taken at the time, namely:

(i) the Committee determined its office should remain open continuously throughout the day and that staff be appropriately rostered; (ii) the collaboration and general assistance of police, welfare

authorities and social workers was sought. They were informed of the operation of the Scheme and the manner in which the Committee proposed to operate;

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(iii) the assistance of the Registrar of the Supreme Court and the Clerk of Petty Sessions was sought and readily given; (iv) there should always be one member of the Committee on duty to grant interim legal aid. This is on a full seven-day week basis and

has continued satisfactorily. As events transpired, there certainly was a need for one such member to always be on duty.; (v) that the staff of the Committee should complete all applications (as far as possible) for legal aid. We had ascertained from some other

schemes that the staff thereof did not complete applications, and that they were in fact, completed by the professions who were paid a fee for so doing. We were anxious to avoid this (and were successful in so doing) as in the Committee’s view it would have been an

unnecessary drain on the Legal Aid Fund. All persons concerned were encouraged to send people to the staff of the Committee for the preparation and completion of Legal Aid applications. This has in fact happened, and very few completed applications are lodged direct. This procedure has substantially reduced the administrative

costs of the scheme; (vi) that there should be a meeting of the Committee each Wednesday morning to ensure all applications were dealt with promptly. There

has been no delay whatever at any time in applications being dealt with and determinations made. Of course, urgent matters between formal Committee meetings are dealt with by the member on duty for the purposes of granting interim aid.

STATISTICAL ANALYSIS OF APPLICATIONS RECEIVED FROM 1 MARCH 1972 TO 30 JUNE 1972

In the abovementioned period 223 formal applications were received, broken up as shown in the table hereunder:

Civil . Criminal Total

A. Total applications received 154 69 223

B. Results of applications: (i) approved prior to 30.6.72 88 52 140

(ii) approved after 30.6.72 44 14 58

(iii) refused 10 2 12

(iv) withdrawn or did not proceed 12 1 13

154 69 223

C. Types of Applications (a) Civil: Divorce 84

Maintenance etc 41

Other: High Court Appeal 1

Supreme Court 6

Petty Sessions 7

Workers’ Compensation 6

Opinions 9

(b) Criminal: Supreme Court 31

154

Petty Sessions 38 69

LEGAL AID FUND AND AUDITOR’S REPORT

The Legal Aid is made up of moneys received by way of:

(i) advances from the Commonwealth; (ii) contributions from applicants; (iii) costs recovered in successful cases; (iv) interest on the Fund itself.

In due course the Fund should also be augmented by a share of interest from the Statutory Interest Account (see Legal Practitioners Ordinance) although it is not expected that any amount will be received from this source for some years.

At a very early stage the Committee engaged as its Accountants, Messrs Cooper Bros & Co., and sought their advice regarding accounting methods and procedures and as to what books of account should be set up to comply with the Ordinance. A report was received from that firm and forms Schedule 4 hereto.

The Accounts of the Committee to 30 June 1972 comprises Schedule 5 hereto. In view of the fact that the Legal Aid Fund comprised moneys provided principally from public sources, the Committee decided at the outset to appoint the Auditor-General as its Auditor. He consented to that appointment and his report on the Accounts of the Committee to 30 June 1972 is Schedule 6 hereto.

Recommendations 1. It is absolutely essential that the Committee be given power to furnish advice from time to time in appropriate cases. We have found it impossible to satisfactorily administer this scheme unless

that statutory power is included in the Ordinance. Whilst the Committee at all times has realised it had no power to furnish legal advice, nevertheless it has always done so in appropriate cases in the interests of the public and will continue to do so. 2. There should be regular publicity given to the scheme, the aid and

facilities it provides. There is still a lack of awareness of the Scheme generally amongst those people who appear to be in real need of legal assistance. 3. In the light of the Auditor-General’s report, we believe it is necessary

that Sections 57 and 58 be amended. The reasons for the Committee acting as it did and the nature of the amendments we recommended are contained in a letter I wrote to your Department on 12 September 1973. A copy of this letter is appended and comprises Schedule 7 hereto.

Conclusion The Committee would like to record its thanks to:

(i) the Secretary of your Department for making his officers freely available as and whenever necessary;

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(ii) officers of your Department, for the great co-operation and continued assistance it has received; (iii) the Registrar of the Supreme Court, the Clerk of Petty Sessions and their officers for their co-operation and assistance;

(iv) the legal profession and Law Society for making the Scheme work.

(J. D. BUTTON) Chairman. 18 December 1973

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SCHEDULE 1.

AUSTRALIAN CAPITAL TERRITORY

LEGAL AID: INTERIM SCHEME, AS AT OCTOBER 1968

A permanent legal aid scheme for the Australian Capital Territory is being formulated but, in the meantime as some doubts appear to exist, it has been decided to set out in this circular what legal aid is at present available in the Territory.

Form o f application 2. Generally speaking, aid must be applied for on the printed form of application. Supplies of this form are obtainable from the Secretary,

Attorney-General’s Department, Canberra, to whom completed forms of application should be addressed.

CIVIL CASES

Means test 3. The means test at present being applied in civil cases is based on that used by the Public Solicitor in New South Wales, that is on the test set out in Section 6 of the Legal Assistance Act, 1943-1964 (N.S.W.). 4. For the purposes of the Australian Capital Territory, the test may be broadly stated as follows:

Capital The capital limit is $400 in property or cash, exclusive of:

(i) the subject matter of the proceedings; (ii) wearing apparel of the applicant; (iii) tools of trade of the applicant; (iv) household furniture used by the applicant in his home;

(v) a dwelling house owned and used by the applicant as his home where the value of his interest in it does not exceed $6,000.

Any item of property may be disregarded, at the discretion of the Department.

Income The permissible gross income, over the period of twelve months immediately preceding the date of the application for legal aid, is $2,000, but the applicant is allowed $300 for each person totally dependent upon him. Payments of invalid pension, child endowment or any military or service pension will be disregarded in calculating income.

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In calculating the income of the applicant, the income of the spouse is added, though a wife would still be classed as a total dependant. Where a husband and wife are not living together, their incomes would not normally be added together for the purposes of the means test as applied to either.

Where an application is made on behalf of an infant who is unmarried and the next friend making the application is a near relative, regard will be had to sub-section (4A) (d) of section 6 of the Legal Assistance Act, 1943-1964 (N.S.W.). . '

Except as mentioned above, the Department has no. discretion to dis­ regard any item of income.

Civil cases, other matrimonial 5. Aid is available in some classes of civil litigation, ex gratia. It is not possible to specify the categories of cases in which aid would be made available: each application will be considered on its merits. As some guide, aid has recently been given in several cases of claims in the Supreme Court for damages for injuries suffered and for appeals in civil cases to the High Court. 6. An applicant would, of course, have to have reasonable grounds for taking, defending, continuing or being a party to proceedings or for

appealing. Where there is a doubt whether these grounds exist, it is usual for the Department to ask for an opinion (and sometimes counsel’s opinion) on the subject before aid to take or defend proceedings, or to appeal, is granted.

Matrimonial cases 7. In these cases ex gratia legal aid may be granted:

(a) where interests in property are in issue in the divorce proceedings, as, for example, where possession or ownership of a jointly-owned matrimonial home is in issue; (b) where the ground or one of the grounds of the divorce is cruelty and

it is in the immediate interests of the petitioner, for example because cruelty is a live threat, or of the children of marriage that a divorce be obtained; (c) where the interests of the children of the marriage would be

substantially affected if a divorce is not obtained.

Legal aid will be granted to a petitioner only where there is a reasonable prospect of the petition being successful.

Fees in matrimonial cases 8. (a) The Commonwealth to pay a maximum of 80 per cent of the taxed party and party costs of the applicant; (b) the solicitor for the applicant to be required to give an undertaking

in writing to take all reasonable steps to recover costs from the other party, in the event of the legally assisted party being awarded costs, and to repay to the Commonwealth any amounts so recovered, less any expenses incurred in recovering the costs, to the extent of the

assistance granted by the Commonwealth; and

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(c) the applicant for legal aid to be required, if he or she has the means to do so, to make a contribution to the cost of the proceedings, the amount of such contribution to be deducted from the amount of assistance to be provided by the Commonwealth.

Maintenance cases 9. Aid is available in maintenance cases, that is, in applications for maintenance in the Court of Petty Sessions, with fees payable as set out in paragraph 12 below.

CRIMINAL CASES

Means test 10. The means test applied in criminal cases is whether the applicant is without adequate means to provide for his own defence.

11. In criminal cases the Court of Petty Sessions aid is available for the preliminary hearings of indictable offences as well as for ‘serious’ cases that are dealt with to finality in that Court. ‘Serious’ cases for this purpose are those in which:

(a) the charge is a grave one in the sense that the accused is in real jeopardy of losing his liberty or livelihood or of suffering serious damage to his reputation; or (b) the charge raises a substantial question of law; or

(c) the accused is unable to follow the proceedings and state his own case because of his inadequate knowledge of English, mental illness or other mental or physical disability; or (d) the nature of the defence involves the tracing and interviewing of

witnesses or expert cross-examination of a witness for the prosecution; or (e) legal representation is desirable in the interest of someone other than the accused as, for example, in the case of sexual offences

against young children when it is undesirable that the accused should cross-examine the witness in person.

Fees 12. Fees payable in Court of Petty Sessions cases where aid is granted are:

A fee of $24 for conducting a defended case, plus $6 for each hour in excess of three on any one day. For a plea of guilty: $8.

13. Employment of counsel in Court of Petty Sessions cases will be approved only in extremely serious cases, which would include some committal proceedings. Generally speaking, the employment of counsel would not be approved unless the prosecution is to be conducted by the Crown Prosecutor or by one of his staff or by outside counsel.

14. Where the employment of counsel is approved, the following fees are payable:

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Defended cases First day Subsequent days

Canberra counsel on brief $41 $34

Solicitor instructing $24 $16

Clerk instructing $12 -$ 8

Pleas o f guilty Counsel $10

Solicitor instructing $ 6

Clerk instructing $ 3

Appeals 15. Legal aid is available in appeals from the Court of Petty Sessions in criminal cases. Normally aid would be granted for an appeal only on receipt of counsel’s opinion that an appeal had reasonable prospects of success. Fees

in these cases will be determined in relation to each case. 16. In the Supreme Court aid is available in criminal cases where a certificate is obtained under the Poor Prisoners Defence Act, 1907 (N.S.W.) in its application to the Territory.

17. The Act covers only persons committed for trial but aid can also be made available where the committal is for sentence, on application being made (on the printed form) to the Attorney-General’s Department. 18. Fees payable in these cases are as follows:

Defended cases (not capital)

First day Subsequent days

Canberra counsel $50 $35

If without solicitor or clerk $60 $40

Sydney counsel $60 $40

Solicitor instructing $30 $20

Clerk instructing $15 $10

Defended cases (capital and formerly capital) Canberra counsel $60 $40

If without solicitor or clerk $80 $55

Sydney counsel $80 $55

Solicitor instructing $40 $30

Clerk instructing $15 $10

Pleas o f guilty Counsel $20

Solicitor instructing $10

If the hearing on the second or subsequent day lasted only an hour or so, half the refresher indicated would be paid. A conference fee, not to exceed $30 for counsel and/or $20 for a solicitor in any one case, would be paid for special conferences (such as a conference at Goulburn Gaol) and travelling expenses connected therewith would be reimbursed. No fee would be paid for an ordinary conference.

Reasonable out-of-pocket expenses, including the cost of transcript where the case goes more than one day, would be reimbursed. The reasonable expenses of witnesses for the accused would also be reimbursed. A fee for briefing Sydney (or Melbourne) counsel would be paid only when the Attorney-General’s Department has given approval. Where approval is given, travelling expenses (air fares, taxis, accommodation and meals) would be paid.

Appeals 19. Aid is available for appeals from the Supreme Court against conviction or sentence. Application should be made on the printed form. Counsel’s opinion will normally be required as to the prospects of success in an appeal. Fees in these cases will be determined in relation to each case.

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CONTRIBUTION BY ASSISTED PERSONS

20. In all cases, civil and criminal, a person who is granted legal aid and who is reasonably able to make some contribution towards costs will be required to do so.

ATTORNEY-GENERAL’S DEPARTMENT

October 1968.

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SCHEDULE 2.

STATEMENT BY THE COMMONWEALTH ATTORNEY-GENERAL SENATOR IVOR J. GREENWOOD, Q.C.

Two Ordinances that will have an important place in the future

administration of law and justice in the Australian Capital Territory were notified in the Commonwealth Gazette today. They are the Legal Aid Ordinance and amendments to the Legal Practitioners Ordinance. The Ordinances put legal aid and the organisation of the legal profession on a proper, permanent basis.

The Legal Aid Ordinance, which comes into operation on 1 March, is a realistic attempt to ensure that no person should, through lack of funds, be put in danger of losing his liberty or livelihood as a result of court proceedings, or of being unable to enforce or defend any legal right he may have.

The legal aid scheme will be controlled by a statutory three-man Legal Aid Committee and will function in close co-operation with the Law Society of the Australian Capital Territory. The Attorney-General will appoint the members of the Committee and the Law Society will make available its

executive officer, Mrs Helen Berryman, a qualified solicitor, to act as secretary to the Committee. The Committee will operate from Law Society premises in the Churchill Building at 218 Northbourne Avenue, Braddon. The legal profession will act on a reduced fee basis when dealing with

legal aid matters. Applications for legal aid may be made by a client through his own solicitor or directly to the Legal Aid Committee. The Legal Aid Ordinance enables aid to be granted in a very wide range of matters. These include:

• serious criminal cases • most civil proceedings • appeals from the Court of Petty Sessions to the Supreme Court and from the Supreme Court to the High Court

• certain Coroner’s inquests or inquiries, and • certain proceedings before Territory tribunals that are not courts.

Legal aid in criminal matters may be granted by the Committee where the applicant is without adequate means to pay the cost of his legal

representation. In civil cases the test is more strict—aid may be granted where the taking or the defending of proceedings would cause undue financial hardship. The scheme is a contributory one and persons granted legal aid will

generally be required to make a contribution towards the cost. The amount of the contribution will depend upon the applicant’s financial situation.

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Eligibility for aid does not depend upon residence in the Australian Capital Territory. The criterion is whether the proceedings are able to be dealt with in a court or tribunal of the Territory. Some restrictions will apply to the granting of aid in criminal matters before the Court of Petty Sessions and also in appeals. Normally, aid in the

Court of Petty Sessions will be granted only in serious cases. In considering aid for appeals to the Supreme Court of the Territory or to the High Court, the Committee must be satisfied that there are reasonable prospects of

success. The Legal Aid Committee will have a discretion to grant aid in any particular case, having regard to the terms of the Ordinance and to the funds available at the time.

Payments for legal aid will be made by the Committee out of a legal aid fund which initially will be financed by grants from the Commonwealth Government. However, it is expected that in a few years time the main source of funds will be from a share of the interest on money held in solicitors’ trust accounts. At present, interest on this money accrues to the bank in which the

Solicitor has his trust account. Naturally, during the initial development of the scheme, the ability of the Committee to grant legal aid must in some part depend upon the number and nature of applications entitling a person to legal aid and the funds available to the Committee. Such matters will be kept under review.

I am particularly grateful to the Law Society for their help and co­ operation in preparing this Ordinance and for the services they performed under the interim legal aid scheme. I also commend the officers of my Department who have played a large part in the preparation of this modern and progressive scheme and who have administered the interim scheme most efficiently and sympathetically.

The amendments to the Legal Practitioners Ordinance come into effect today. Under the Ordinance, the Law Society will issue annual practising certificates, which in future will be necessary for any lawyer wishing to practise as a solicitor in the Territory. The Law Society will take over the supervision of trust accounts.

There will also be a Disciplinary Committee of the Law Society, whose function it will be to investigate complaints against members of the Law Society and any other practitioner who holds a practising certificate. The Committee itself will have certain disciplinary powers and it will have the function of bringing cases of alleged professional misconduct before the Supreme Court.

The Ordinance also requires solicitors to deposit a certain proportion of their trust funds with the Law Society. The Society will have general supervision of the collection and investment of trust money and of the distribution of interest received from the investments of their money.

From today, all persons wishing to practise in the Australian Capital Territory will need to be enrolled as barristers and solicitors of the Supreme Court of the Territory. Previously, the qualification needed to practise in the Territory was to have been admitted to practise in the Supreme Court of any

State or Territory or in the High Court. There are now over 600 practitioners

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enrolled with the Supreme Court, but many of these are from interstate. From today, a legally qualified person will need to be formally admitted to practise in the Territory by the Supreme Court. A person whose name is on the Roll of Barristers and Solicitors may practise in the Territory as a barrister, as a solicitor, or as both.

The Ordinance gives the Governor-General power to appoint Queen’s Counsel for the Australian Capital Territory. Any practitioner on the Australian Capital Territory roll will be eligible for such an appointment. I expect that the Governor-General will shortly be appointing as Queen’s

Counsel for the Territory a number of persons who are already Queen’s Counsel in one or other of the States.

In addition, the Ordinance:

• establishes a solicitors’ fidelity fund operated by the Law Society which will protect the public against defalcating solicitors; • makes it a condition of obtaining a practising certificate that the solicitor has complied with the requirements of the Ordinance,

including an annual audit of his trust account; • makes the Law Society an incorporated body.

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Canberra 10 February 1972 7/72 SCHEDULE 3.

LEGAL AID ORDINANCE 1972 A.C.T. (NO. 5 of 1972)

GENERAL INFORMATION

The Ordinance, which operates on and from 1 March 1972 provides a permanent scheme of legal aid for the Australian Capital Territory. This scheme will be administered by a statutory Legal Aid Committee comprising three persons appointed by the Attorney-General. There are also three deputy members who will act in the absence of the principal members. 2. The scheme provides for legal aid in both civil and criminal matters. It covers:

all civil matters, except the few matters specified in section 5(2.), but subject to the general considerations set out in section 33 and the special rules for defamation and breach of promise cases (sections 39 and 40); all criminal matters but, in the case of summary matters in the Court of Petty Sessions, subject to the restrictions set out in section 29; private informations for assault and applications to keep the peace; appeals from the Court of Petty Sessions to the Supreme Court and from the Supreme Court to the High Court; proceedings by way of prerogative writ; inquests and inquiries under the Coroners Ordinance (subject to the special conditions under section 41); proceedings before certain tribunals that are not Courts (subject to the special conditions under section 42).

3. There are some restrictions on aid for appeals and for proceedings by way of prerogative writ. The Committee must be satisfied that the applicant’s case would have reasonable prospects of success and may, pursuant to sections 31 and 38, require a legal opinion to that effect. If such an opinion is required it must be properly reasoned and supported by relevant authorities. 4. Eligibility for aid does not depend upon residence in the Territory. The criterion is whether the proceedings are maintainable in a court having jurisdiction in the Territory (section 5 (1.)), or are before a tribunal

constituted by or under a law in force in the Territory. 5. In a criminal case aid may be granted to an applicant who is without adequate means to pay the costs of his legal representation (section 27). In a civil case aid may be granted where the costs of taking, defending or otherwise being a party to proceedings without such aid will cause undue hardship to the applicant and where it appears that the applicant has reasonable grounds for taking or being a party to proceedings (section 33). 6. Basically this is a contributory scheme. The contribution (if any) in all

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cases is to be determined by the Committee (see section 28 for criminal cases and sections 35 and 36 for civil matters). In a civil case certain exclusions are made from an applicant’s income and assets before a contribution is assessed. These exclusions on income are set out in sections 43 to 49

(disposable income), whilst the exclusions on assets appear in sections 50 and 51 (disposable assets). 7. Payments to barristers and solicitors will be made by the Committee out of the Legal Aid Fund, on a reduced fee basis. Fees in civil matters will be

paid according to the formula prescribed in section 58 for solicitors’ work and in section 59 for barristers’ work. These payments will be reduced by the amount of any contribution required to be made by the client. The Committee has a discretion on· the manner of payment of contributions. Where it consists

of, say, one or two payments only, the Committee desires that it be collected by the solicitor. If payments are to be made over a period, they will be collected by the Committee at its office. A rate for payment in criminal

matters has been prescribed by the Attorney-General in accordance with section 57. 8. The Legal Aid Fund will consist of money paid into the Committee’s Account in accordance with sections 19, 20 and 21. It is hoped that, in a few years time the main source of moneys will be from a share of the interest on

the Statutory Interest Account, set up under the Legal Practitioners Ordinance 1972. In the meantime the Fund will be subsidised by the Commonwealth Treasury. 9. Interim grants of aid in cases where there is an emergency are covered in

section 63. 10. The Members and Deputy Members of the Legal Aid Committee are:

1. John Desmond Button.

Deputy: David Joseph Crossin. 2. Brian Robert Gallen.

Deputy: John Daniel Donohue. 3. Arthur Roy Mansfield Watson.

Deputy: Geoffrey Marwick Wheeler.

Messrs Button, Gallen, Crossin and Donohue are Barristers and Solicitors in private practice in the Territory. They were nominated to the Committee by the Law Society of the A.C.T. Messrs Watson and Wheeler are Barristers and Solicitors and members of the Executive Division of the Attorney-General’s Department.

11. The forms of application for legal aid have been settled and approved by the Committee. The application in respect of civil matters is a different colour to that of the application in criminal matters. Forms may be obtained from the Secretary.

12. The Committee is aware that in other places it is common for further information to be sought before a grant of legal aid can be made. The Australian Capital Territory forms have been designed as they have for the following reasons:

(i) to satisfy the tests prescribed in the Ordinance;

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(ii) to reduce to a minimum the need of the Committee to seek further information; (iii) to expedite decisions on applications; and (iv) to keep to as low as possible the overhead costs of the provision of

legal aid.

13. The offices of the Committee are situated at:

2nd Floor, East Wing, Churchill Building, 218 Northbourne Avenue, BRADDON A.C.T. 2601

Phone Nos. 47 6011 and 47 6300 Office hours: 9 to 5 each week day.

14. The Executive Officer of the Law Society of the Australian Capital Territory, Mrs H. Berryman, has been appointed by the Committee as its Secretary. She is available to assist members of the public in completing applications and, in order to facilitate the making of Statutory Declarations verifying applications, has been appointed a Commissioner for Declarations. The Committee however wishes to make it clear that the Secretary has no power to grant or refuse legal aid in any case.

J.D . BUTTON Chairman Legal A id Committee o f the Australian Capital Territory

29 February 1972

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SCHEDULE 4.

COOPER BROTHERS & CO. COOPER BROTHERS WAY & HARDIE

78 Northbourne Avenue, Canberra City, A.C.T.

Our Reference BEO/cg

13 April 1972

Mrs Berryman, Secretary, The Legal Aid Committee, Churchill House,

Northbourne Avenue, z CANBERRA CITY, A.C.T. 2601

Dear Madam,

THE LEGAL AID FUND OF THE AUSTRALIAN CAPITAL TERRITORY

We have been requested to advise your committee as to the accountancy system to be used to record the transactions of the Legal Aid Committee, and set out hereunder our recommendations.

2. Cash Receipts (a) Receipt books to be printed in duplicate and consecutively numbered. (b) A register of receipts books to be maintained to show receipt books

issued and on hand. (c) On receipt of money, a receipt to be issued and the original receipt to be handed or sent to the payee. (d) An eight column Cash Book to be used to record the receipts of

money and to disclose the date of the receipt, name and receipt number. The eight columns of the Cash Book to be headed:

(1) Contributions i.e. amounts received from the applicants as determined by the Committee in accordance with Sec. 28 and 35 of the Ordinance.

(2) Statutory Interest. (3) Grants by Parliament. (4) Investment Income.

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(5) Repayment of Contributions Sec. 61 of the Ordinance. (6) Sundries—for any other item of receipt, including Repayment of Costs—Sec. 61. (7) Narration Column to describe receipt in Col. 6. (8) Bank

Bankings should be made daily.

3. Cheque payments (a) All cheques to be crossed not negotiable and made payable to order. (b) A multi-column cash book to be used to record all cheque payments, and to show the date of the cheque, payee and cheque number. The

columns of the cash book to be headed:

(a) Bank in which is recorded the amount of the cheque and then the payment to be dissected under the following headings across the cash book: (b) Legal Assistance—Committee’s share. (c) Legal Assistance—Contributions. (d) Administration—Law Society for payments to that Society for

the services of the Secretary and other officers and employees, Sec. 21 (b) (i). x

(e) Rent. (f) Printing, stationery and office supplies. (g) Stamps. (h) Repairs. (i) Travelling expenses. (j) Amenities. (k) Insurances. (l) Telephone. (m) Electricity. (n) Bank fees and charges. (o) Repayment Contributions Sec. 54 (1) (c) (iii). (p) Plant and furniture. (q) Narration to record item of plant and furniture purchased or

detail of item recorded in Sundries (r). (r) Sundries for any other item of expense.

4. Petty Cash (a) Petty cash book to be maintained on an imprest system. An advance of $20 to be made and all petty expenses to be paid therefrom. The petty cash book to be an eight column cash book to record the date and payee.

The columns of the cash book to be headed:

(a) Total—to record each individual payment and then the amount to be dissected as to nature of the expense. (b) Printing, stationery and office supplies. (c) Stamps.

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(d) Travelling expenses. (e) Amenities. (f) Leave blank at present. (g) Sundries for any other item of expense. (h) Narration to record type of expense Col. (g).

Petty cash expenditure to be reimbursed as required to recoup expenditure since last reimbursement. The reimbursement cheque to be entered in the cash payments under the bank column and the dissection of expenses as shown in the petty cash book

5. Stamp Book To record all letters despatched and cost of the same. Reimbursement can be made by cheque or petty cash depending on

volume of outward mail.

6. Mileage Book To record mileage travelled by staff in their cars. Reimbursement for mileage to be made from petty cash or by cheque.

7. Register o f Fixed Assets A separate card to be maintained for each item of plant or furniture showing:

(a) Description of asset. (b) Date of purchase. (c) Name of Purchaser. (d) Cost.

(e) Depreciation rate. (f) Depreciation written off each year.

As some furniture has been supplied by the Commonwealth Government, the card should show:

(a) Description of asset. (b) Date obtained. (c) Commonwealth Government as supplier.

8. Contributions—Journal The journal to record:

(1) Date. (2) File reference number. (3) Name of applicant. (4) Amount of the contribution as determined by the Committee to be

paid to the Committee. (5) Legal Aid—actual or estimate. (6) Amount of the contribution to be paid by applicant to the Solicitor—statistical purposes only.

This information will be obtained from the Committee’s minutes or

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originating approval record—Sec. 28 and 35. Variations to the amount of the contribution as determined by the Committee’s minutes or approval record. Increases in applicant’s contribution to be shown as additional contribution, any reductions will be recorded as credits.

9. Contribution Ledger Cards A card to be opened for each approved applicant on which will be entered:

(1) Full name. (2) Address. (3) Reference number. (4) Amount of contribution payable

to the Committee. (5) Amount of Legal Aid (6) Total costs. (7) Number of payments and date each instalment due by the

Contributor. (8) The date and amount of contribution payable is entered in the debit column from the contributions journal. (9) The date of receipt of the contribution is posted from the cash

receipts.

(10) When the solicitor is paid, the date, amount paid, solicitor’s name should be noted on the card.

A draft card is attached for information. Cards in respect of completed matters and showing Nil balances should be removed and placed in completed file.

10. Control Account o f Contribution Ledger Cards

(1) The total of the Contributions journal to be posted monthly to the debit of the control. «

(2) The total of contributions received from applicants monthly to be posted to the credit of the control.

The balance of the control account to be agreed with the total of the contribution ledger cards monthly or at regular intervals.

11. The contribution ledger cards to be examined at regular intervals to ensure payments are regularly made on the due dates. Arrears in payment to be followed up and any contributor in arrears in excess of the period fixed by the Committee to be listed and such list tabled at a Committee meeting.

12. Two lists to be prepared at end of each financial year from the Contribution ledger cards.

(1) From cards, which matters have not been settled, showing: Name Contribution Amount B/ce Legal

Payable Received Aid

The total of the amount received in this list is disclosed on the balance sheet as “Contributions in Advance” . The total of legal aid is the commitment of the Committee 'and will be raised in the

Sec. 28 and 35 for record purposes.

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Accounts in the form of a Provision to be debited to Accumulated Funds. (2) From cards where matters have been settled and legal aid paid to the solicitor:

Name Contribution Amount B/ce

Payable Paid

This list will be considered by the Committee as to:

(i) Vary the nature and extent of the contribution by the

application—Sec. 54, or (ii) Sue for recovery.

Adjustments in (i) above to be made at the end of the financial year. The adjusted total will be shown in the balance sheet as sundry debtors, or contribution in arrears.

The contributions for the year are calculated:

Total cash contributions for the year Add: Contribution in arrears ------------

Less: Repayments—Sec. 61 Contributions in Advance ------------

13. Should a payment on account be made to a solicitor before the finalisation of any matter, an estimate should be made of the contribution received which is applicable to the payment on account and the balance or deficiency of the contribution received to be included in contributions in

advance or sundry debtors. 14. To obtain a true and fair view of the Committee’s financial affairs, accounts rendered but not paid at the end of the financial year should be:

(i) Brought to account as Creditors. (ii) A note made on the applicant’s card and the balance extracted on list referred to in para 12 (2).

15. Chart o f Accounts—Private Ledger Liabilities 1 -100

(1) Accumulated Funds. (2) Provision for legal aid (Committee’s proportion) (3) Creditors. (4) Accrued Liabilities.

(5) Contributions in advance. (6) Provision for Depreciation—Furniture and Fittings. (7) Provisions for Depreciation—Office Equipment. Assets 101 - 200

101. Furniture and Fittings.

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102. Office Equipment. 106. Bank Account. 107. Petty Cash. 115-140. Investments (by category). 141. Contributions in arrears. Income 201 - 300

201. Grants by Parliament. 202. Statutory Interest. 203-230. Investment Income by categories. Expenditure 301 - 400

301. Administration—Law Society. 302. Rent. 303. Printing, stationery and office supplies. 304. Stamps. 305. Repairs. 306. Travelling expenses. 307. Amenities. 308. Insurances. 309. Telephone. 310. Electricity. 311. Cleaning and cleaning materials. 312. Bank fees and charges. 313. Legal Assistance—Committee’s share. 314. Legal Assistance—Contributions. 315. Accountancy and audit.

16. There will no doubt be modifications required to the accountancy system, however, any changes can be effected at 30 June 1972.

Yours faithfully,

Cooper Brothers & Co.

Enc.

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SCHEDULE 5.

THE LEGAL AID COMMITTEE OF THE AUSTRALIAN CAPITAL TERRITORY

Statement of Receipts and Payments for period 1 March 1972 to 30 June 1972

Receipts Payments

$ $

Grants received from (1) Legal Assistance— $

Commonwealth 13,461

Civil matters 384

(2) Contributions received Criminal matters 7,975

from applicants— 8.359

$ Administrative Expenses 6.031

Civil matters 931 Office Furniture and

Equipment 192

Petty Cash Advance 20

Criminal matters 210

1,141

$14,602 $14,602

(1) An unpaid account on hand amounted to $800. Gross liability for certificates issued and not presented for payment is estimated to be $26 212. (2) Contributions determined but not due is estimated to be $2 539. Contributions paid by applicants direct to solicitors total $745 (Civil $295, Criminal $450).

(Sgd) J. D. Button (Sgd) H. Berryman

J. D. BUTTON Chairman

H. BERRYMAN 25.10.1972 Secretary

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SCHEDULE 6.

COMMONWEALTH OF AUSTRALIA

Auditor-General’s Office Canberra A.C.T.

4 April. 1973.

The Chairman, Legal Aid Committee of the Australian Capital Territory, Churchill House, 218 Northbourne Avenue, BRADDON, A.C.T., 2601

Dear Sir,

Financial Statements Period 1 March to 30 June 1972

The accounts and records of the Legal Aid Committee of the Australian Capital Territory and the Statements of Receipts and Payments for the period 1 March to 30 June 1972 have been examined and, in accordance with section 23 (2.) of the Legal A id Ordinance 1972,1 now report that:

(a) the Statement of Receipts and Payments is based on proper accounts and records; (b) the Statement is in agreement with the accounts and records; and (c) the receipt and expenditure of money and the acquisition of assets

by the Committee during the period 1 March to 30 June 1972 have been in accordance with the Ordinance except that there were instances, where, although the Committee had determined under section 52 (3.) (c) that legal aid granted should be subject to a contribution by the legally assisted person towards the costs of the matter, the amount paid by the Committee to the barrister and

solicitor was not appropriately reduced by such contribution, as required under section 57 (2.).

No investments were made, neither were any assets disposed of during the period.

Yours faithfully, (Sgd) V. J. W. Skermer (V. J. W. SKERMER) Auditor-General fo r the Commonwealth

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SCHEDULE 7.

DAVIES BAILEY & CATER SOLICITORS & NOTARIES

The Secretary, Attorney-General’s Department, Administrative Building, PARKES, A.C.T.

Your Ref: 73/4956 Our Ref: JDB:DD Date: 12 September 1973

Attention: Mr Harkins

Dear Sir,

Re: Legal A id Ordinance 1972

Thank you for your letter of the 10th instant, the contents of which I have noted together with the annexures. I wish to make it clear at the outset that for some time I have been aware of the Auditor-General’s report and was fully aware this question would be raised. As will appear from what I have to say

hereunder, the Committee felt it had no option but to act in the manner in which it has so that it could effectively carry out its duties under the Ordinance. Within a period of about a week after the Ordinance commenced on the

1st March, 1972, we found it impossible to carry out our functions effectively if we did not direct in all cases, that contributions be paid to the Committee. If we had not directed this, we would not have been able:

(a) to budget properly for our income and expenditure, (b) to keep proper control of contributions, and (c) effectively to administer Sections 61 and 62 of the Ordinance in cases to which those Sections are of application.

To have acted otherwise would have created a great deal of unnecessary work for the Committee, its staff and all those members of the legal profession participating in the Legal Aid scheme provided by the Ordinance. It would have, in my view, seriously jeopardised the total effective

administration of the Ordinance. I would like to analyse some of the provisions of the Ordinance which I believe are of relevance. All that has really happened is that the Committee has directed all contributions to be paid to it and in making payments to

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which either Sections 57 or 58 applied, did not deduct the contributions from the amount payable to the legal practitioner concerned as they had either been paid already to the Committee or were payable to it. To have done otherwise, in the view of the Committee, would have created an impossible situation so far as the scheme was concerned.

I would also like to make it very clear that at no time has there been any overpayment whatever to any practitioner representing any legally assisted person, if that could possibly be construed from the report of the Auditor- General. I know the Auditor-General does not suggest that and in fact, the Committee itself drew his attention to the practice it felt it had to adopt, at the commencement of the audit.

Section 52 of the Ordinance requires the Committee to determine the nature and extent of Legal Aid that has been granted and to issue a Legal Aid Certificate. The provisions relating to what shall be contained in that Certificate are set forth in Sub-section (3). I draw your attention to paragraph (e) of that Sub-section where it is provided that in the case where Aid is granted subject to a condition that an applicant shall pay an amount by way of contribution towards costs, there shall be specified whether that amount is payable to either the Committee or the legal practitioner acting for the legally assisted person. As I have stated, within a week of commencing operations, we directed all contributions be paid to the Committee and have done so ever since.

Section 55 of the Ordinance provides inter alia that the Committee may cancel a grant of Aid if the legally assisted person fails to pay his contribution or any part thereof in the manner and within the time determined by the Committee. The Committee by thus directing in every case since that first week, has been able to keep a proper control of contributions payable to it and effectively exercise its powers and responsibilities under that Section. If it had directed that contributions be paid to the legal practitioner acting for the legally assisted person, the Committee would not know at any given time what the situation was regarding contributions and to administer the Ordinance in those circumstance would have, in its view, created a great deal of

unnecessary administrative work, both for the Committee and for the legal profession. Section 57 of course only applies to payment of costs in respect of criminal proceedings. I draw your attention not only to the provisions of Sub-section

(1) but the significance thereof in this context. It is clear from a perusal of Sub-section (2) of that Section that in the event of the legally assisted person being required to make a contribution towards his costs, the amount payable to the legal practitioner who acted for him shall be reduced by the amount of the contribution required to be paid by the legally assisted person. This Section of course must be amended as it would be harsh, unconscionable and not within the concept of the Legal Aid scheme if the Committee, having directed that all contributions be paid to it, then penalised the legal practitioner by technically complying with Section 57 (2). You are aware of course that the Legal profession is making a substantial contribution towards the administration of this scheme. Those contributions take the form of:

(a) members of the legal profession administering the Ordinance at no

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cost to the scheme, the public or the Government, and (b) all legal practitioners who act for a legally assisted person under the scheme receiving substantially less than they would otherwise be entitled to receive in a non-Legal Aid case.

In respect of civil proceedings, Section 58 of course makes the appropriate provisions regarding payment of costs and I draw your attention to the significance in this context of the definition of ‘allowable costs’. The effect of Sub-section (3) is precisely the same as Section 57 (2) and the comments I have made regarding the latter Section equally apply with regard to this

Section. Section 61 makes specific provision for two classes of cases, namely:

(a) where a legally assisted person has benefited by obtaining an order for costs in the proceedings taken by him, and (b) benefited by a lump sum judgment or verdict given in the proceedings in which he has been involved.

In these cases you will note from a consideration of Section 61 that in all cases the liability is on the part of the legally assisted person to pay to the Committee amounts, namely either the costs recovered by him or the amount determined in accordance with Sub-section (2). This Section was also an

added reason why the Committee felt it had no option but to direct all contributions be paid to it and not to the legal practitioner. I would also like to draw your attention to Section 62 where the Committee is given power to give such directions to the aided person and his

legal practitioner as are necessary to ensure that payment is made to the Committee of amounts payable under Section 61. Regard should also be had to Section 68 and in particular paragraph (e). I feel the words of significance in this paragraph are ‘where applicable’. In all

cases since that first week of operations that situation has never arisen. Section 72 is also of some assistance. This Section deals with the recovery of contributions and provides that the legal practitioner who acted for the legally assisted person may sue to recover contributions whether or not the

contribution was payable to the Committee or to the legal practitioner himself.

From this analysis it has always seemed to me to be clear that notwithstanding the alternatives of paying contributions, that is either to the Committee or to the legal practitioner concerned, the basic concept of the Ordinance so far as contributions were concerned, seemed to be more heavily

weighted towards contributions being made to the Committee. That of course is in addition to the important reasons why the Committee felt in the interests of proper administration of the scheme that all contributions should be paid

to it and thus to have complied to the letter with Sections 57 and 58 would have, in my view, endangered the whole scheme.

Summarising, therefore, the Committee has:

(i) directed contributions to be paid to it

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(ii) received such contributions and banked them in the Legal Aid Fund, and (iii) paid amounts out of the Fund to legal practitioners pursuant to Part IX but without deduction of contributions, as the contributions had

in all cases been payable direct to the Committee.

The draft report of the Committee to June, 1972 which will soon be in the hands of the Attorney-General, contains several recommendations as to amendments to the Ordinance and in particular, Section 57 and 58. The Auditor-General was informed by me that such recommendations would be made.

Yours faithfully,

(John D. Button)