Legal Services Commission (Miscellaneous) Amendment Bill

Second Reading

The Hon. P. MALINAUSKAS (Minister for Police, Minister for Correctional Services, Minister for Emergency Services, Minister for Road Safety) (15:23): I move:

That this bill be now read a second time.

I seek leave to insert the second reading and explanation of clauses into Hansard without my reading it.

Leave granted.

Currently, the Legal Services Commission Act 1977 (the Act) establishes a ten member Commission comprising the following persons who are appointed by the Governor:

a Chairman, who is a person holding judicial office or a legal practitioner of not less than five years standing nominated by the Attorney-General;

one person who is, in my opinion, an appropriate person to represent the interests of assisted persons;

three persons nominated by the Attorney-General;

three persons nominated by the Law Society;

one employee of the Commission on the nomination of the employees of the Commission; and

the Director of the Commission.

The Commission is a representative rather than a skills-based board.

The Bill reduces the number of Commissioners that comprise the Commission from ten to five people, and make skills, knowledge and expertise the relevant factors when appointing a Commissioner.

The catalyst for this Bill can be traced back to February 2011 when a review of the provision of legal aid in State criminal cases by the Commission (the review) was announced.

The review was conducted by a committee (the Committee) of senior legal practitioners, comprising Mr Martin Hinton QC (the Chair), Mr Michael Abbott AO QC, Mr Ralph Bonig, his Honour Judge Muscat and Mr Mark Norman SC. The Committee released four reports.

Of particular relevance is its third report titled, The Governance Structure of the Commission and a Public Defender's Office for South Australia (the Third Report). The Committee recommended a change to the governance structure of the Commission.

The Committee was critical of the current composition of the Commission and stated:

'A very real question arises as to the benefit that the Commission as currently constituted brings to the contemplated operations of the organisation'.

'[T]he current composition of the Commission may exclude skills of benefit to the Commission. Members possessing skills in management, public administration and service delivery could benefit the Commission.'

After taking into consideration the size and compositions of the various Commissions around Australia, it was determined that the Bill would establish a five member Commission comprising:

a Chair nominated by the Attorney-General who must be a person holding judicial office or a legal practitioner of not less than five years standing;

the Director; and

three other members nominated by the Attorney-General of whom:

at least one must have experience in financial management; and

at least one must be able to represent the interests of legally assisted persons.

The Bill addresses concerns that legal practitioners would not be sufficiently represented in the newly constituted Board in two ways.

First, the Attorney-General must consult with the Law Society and Bar Association before nominating a person for appointment to the Commission. I note that an exception is made for the nominee who has experience in financial management. The Attorney-General is not required to consult with the Law Society and Bar Association on that appointment. All appointments will continue to be made by the Governor in Executive Council.

Secondly, the Bill establishes the Legal Profession Reference Committee (the Reference Committee). The Reference Committee is given broad jurisdiction to advise the Commission in relation to any matter referred to it, or any of the Commission's functions under the Act. The Reference Committee comprises seven members. The Law Society and Bar Association will each be given the power to nominate two members to the Reference Committee.

The Reference Committee is based on the Queensland model. The Queensland Reference Committee meets three times a year to advise the Commission about fees paid to private practitioners, panels and grants of aid. One point of contrast with the Queensland model is that the South Australian Reference Committee will be established by legislation whereas the Queensland Reference Group is not.

One of the consequences of reducing the number of Commissioners is that there will only be four members eligible to hear appeals because the Director is excluded. Those four members will not be able to manage the appeals process if the legislation is to continue to require appeals to be heard by three Commission members. In 2015, the Commission met 22 times during the year and heard 146 appeals.

Accordingly, the Bill provides that appeals will continue to be heard by three people with at least one Commission member, and up to two people drawn from a panel of assessors. The Commission will establish a panel of assessors with suitably qualified persons to help hear the appeals.

I commend the Bill to Members.

Explanation of Clauses

Part 1—Preliminary

1—Short title

2—Commencement

3—Amendment provisions

These clauses are formal.

Part 2—Amendment of Legal Services Commission Act 1977

4—Amendment of section 5—Interpretation

This amendment inserts a 'pointer' definition for the Legal Profession Reference Committee and is consequential on the establishment of that Committee under proposed section 11A in clause 7 of this measure.

5—Amendment of section 6—Constitution of Legal Services Commission

This clause amends section 6 of the Act to reduce the number of members of the Commission from 10 members to 5. The amendment also changes the constitution of the Commission to be made up of—

the Director of the Commission;

the Chairperson who must be a person holding judicial office or a legal practitioner of 5 or more years standing. This person is to be appointed by the Governor on the nomination of the Attorney-General;

3 other persons, at least 1 of whom must have experience in financial management and 1 of whom must be an appropriate person to represent the interests of assisted persons. These members are to be appointed by the Governor on the nomination of the Attorney-General following consultation with the Law Society and the South Australian Bar Association in relation to the person representing the interests of assisted persons.

6—Amendment of section 8—Quorum etc

As a consequence of reducing the number of members of the Commission, this amendment reduces the number of members required to constitute a quorum of the Commission from 5 members to 3 members and deletes subsection (1a) which is no longer required.

7—Insertion of section 11A

This clause inserts a new section.

11A—Legal Profession Reference Committee

The proposed section provides for the Commission to establish the Legal Profession Reference Committee to advise the Commission in relation to matters it refers to it or that relate to any of the Commission's functions under the Act, or to perform any other functions assigned to it under the Act. The Reference Committee is to consist of 7 members including the Chairperson, the Director and an employee of the Commission, as well as 2 members nominated by the Law Society and 2 members nominated by the South Australian Bar Association.

8—Amendment of section 12—Advisory and other committees

This amendment is consequential on the amendment in clause 6 and the establishment of the Legal Profession Reference Committee.

9—Insertion of sections 12A and 12B

This clause inserts 2 new sections to provide for an appeal panel to hear appeals against decisions of the Director of the Commission under Part 4 of the Act and to provide for the inclusion of assessors on the panel. This is as a consequence of reducing the number of members of the Commission to ensure that there are a sufficient number of persons to hear the appeals.

12A—Appeals

The proposed section provides that appeals against decisions of the Director under Part 4 of the Act are to be heard by a panel of 3 persons of whom at least 1 must be a member of the Commission and, depending on the number of Commission members on the panel, may include up to 2 assessors selected from a panel of assessors established by the Commission under proposed section 12B. The clause also provides for who is to preside at a hearing.

12B—Panel of assessors

The proposed section provides for the establishment of a panel of persons by the Commission who may sit as assessors on an appeal panel. The panel of assessors is to consist of persons who, in the opinion of the Commission, have appropriate qualifications and experience. Members of the panel may be appointed for a term not exceeding 3 years, on conditions determined by the Commission. An assessor is precluded from participating in the hearing of a matter if the person has a personal, or a direct or indirect interest in the matter.

10—Amendment of section 13—Delegation

This amendment clarifies that the inclusion of assessors on a panel hearing an appeal of a decision of the Director is not precluded by the prohibition on the Commission to delegate the power to hear and determine appeals contained in section 13(2)(b) of the Act.

11—Amendment of section 18C—Director to determine scale of fees for professional legal work

This amendment provides that consultation under this section is with the Legal Profession Reference Committee rather than the Law Society.

12—Amendment of section 19—Determination and payment of legal assistance costs to legal practitioners (other than Commission practitioners)

This amendment provides that consultation under this section is with the Legal Profession Reference Committee rather than the Law Society.

13—Amendment of section 31A—Secrecy

This amendment ensures that the operation of section 31A of the Act (which deals with issues of confidentiality) extends to members of the Legal Profession Reference Committee and members of the panel of assessors.

14—Amendment of section 33A—Immunity

This amendment extends the operation of section 33A to provide for the same immunity to apply to members of the panel of assessors as applies to members of the Commission.

15—Amendment of section 34—Regulations

This amendment deletes subsection (2) and is consequential on the amendments relating to the changes to the constitution of the Commission. Nominations by employees of the Commission are no longer relevant.

Schedule 1—Transitional provision

1—Transitional provision

This provision provides for transitional arrangements in relation to the changes to the membership of the Commission effected by this measure.

Debate adjourned on motion of Hon. D.W. Ridgway.