Schedule 8 Savings, transitional and other provisions
(Sections 73, 74)
(1) In this Schedule:first appointed day means the day appointed and notified under section 2 (2).
former Acts means the Legal Assistance Act 1943 and the Legal Practitioners (Legal Aid) Act 1970.
second appointed day means the day appointed and notified under section 2 (3).
(2) A reference in this Schedule to legal aid under either of the former Acts includes a reference to legal assistance under the Legal Assistance Act 1943.
Part 1A Savings and transitional regulations
(1) The regulations may contain provisions of a savings or transitional nature consequent on the enactment of the following Acts:Legal Services Commission (Amendment) Act 1985
Legal Aid Commission (Amendment) Act 1987
Legal Aid Commission (Amendment) Act 1989
Legal Aid Commission (Amendment) Act 1990
Legal Aid Commission (Amendment) Act 1992
Legal Aid Commission Amendment Act 1996
Legal Aid Commission Amendment Act 1997
(2) A provision referred to in subclause (1) may, if the regulations so provide, take effect as from the date of assent to the Act concerned or a later day.(3) To the extent to which a provision referred to in subclause (1) takes effect from a date that is earlier than the date of its publication in the Gazette, the provision does not operate so as:(a) to affect, in a manner prejudicial to any person (other than the State or an authority of the State), the rights of that person existing before the date of its publication in the Gazette, or(b) to impose liabilities on any person (other than the State or an authority of the State) in respect of anything done or omitted to be done before the date of its publication in the Gazette.(4) A provision referred to in subclause (1) shall, if the regulations so provide, have effect notwithstanding any other clause of this Schedule, except:(a) clauses 16 and 17 of Part 4, and(b) clause 21 of Part 5.
2, 3(Repealed)
Part 3 Legal aid under former Acts
4 Undetermined applications for legal aid
An application for legal aid under either of the former Acts which has not been determined immediately before the second appointed day shall be deemed to be an application under section 31.
5 Persons in receipt of legal aid under the former Acts
A person who was in receipt of legal aid under either of the former Acts immediately before the second appointed day or who has received legal aid under either of the former Acts at any time before the second appointed day shall be deemed to be a legally assisted person.
6 Terms and conditions in certificates issued under the former Acts
A term or condition in a certificate granted under the Legal Assistance Act 1943, or issued under the Legal Practitioners (Legal Aid) Act 1970, being a certificate in force immediately before the second appointed day, shall be deemed to be a condition subject to which legal aid is granted and which has been imposed by the Commission under section 34 (1).
7 Assignment of work to private legal practitioners
A private legal practitioner who, immediately before the second appointed day, acted for a person who was in receipt of legal aid under either of the former Acts immediately before the second appointed day shall be deemed to be a private legal practitioner to whom the Commission has assigned work under this Act.
8 Transfer of money in Law Society’s Fund
(1) In this clause:Commission’s Fund means the Legal Aid Fund established under section 62.
Law Society’s Fund means the Legal Aid Fund established under section 15 of the Legal Practitioners (Legal Aid) Act 1970.
(2) The Law Society shall, on the second appointed day, pay to the Commission all money then standing to the credit of the Law Society’s Fund.(3) The Commission shall pay the money received by it under subclause (2) of this clause into the Commission’s Fund.(4) On and from the second appointed day:(a) all proceedings commenced before that day by the Law Society for the recovery of money payable into the Law Society’s Fund and which are pending immediately before that day shall be deemed to be proceedings pending on that day by the Commission for the recovery of money payable into the Commission’s Fund and all proceedings so commenced by any person against the Law Society for the recovery of money payable out of the Law Society’s Fund and which are pending immediately before that day shall be deemed to be proceedings pending on that day by that person against the Commission for the recovery of money payable out of the Commission’s Fund,(b) all debts, moneys and claims, liquidated and unliquidated, that, immediately before that day, were due or payable by, or recoverable against, the Law Society and payable out of the Law Society’s Fund shall be debts due and moneys payable by and claims recoverable against the Commission and payable out of the Commission’s Fund, and(c) all liquidated and unliquidated claims for which the Law Society would, but for the enactment of this Act, have been liable shall be liquidated and unliquidated claims for which the Commission shall be liable.
9 Legal aid obtained by fraud or misrepresentation under the former Acts
The reference in section 43 (1) (a) to legal aid includes a reference to legal aid obtained under either of the former Acts.
12 Continuation of certain provisions
The provisions of sections 3 (8) (a) and 3A (6) of the Legal Assistance Act 1943 shall, notwithstanding the repeal of that Act, continue to apply after the date of repeal of that Act in favour of the persons in respect of whom they applied immediately before that date.
Part 4 Savings, transitional and other provisions consequent on enactment of Legal Services Commission (Amendment) Act 1985
13 Construction of certain references
(1) On and from the commencement of the Legal Services Commission (Amendment) Act 1985, a reference in a provision of any other Act or of any regulation, by-law or other statutory instrument or of any other document, whether of the same or of a different kind:(a) to the Legal Services Commission of New South Wales (however expressed) shall be construed as a reference to the Legal Aid Commission of New South Wales,(b) to the Deputy Chairman, the Public Solicitor, the Deputy Public Solicitor or the Referrals Director, shall be construed as a reference to the Director within the meaning of section 4 (1) of this Act, and(c) to the Commissioner for Legal Aid Services or the Public Solicitor within the meaning of the Legal Assistance Act 1943, or the Legal Aid Manager of the Law Society, shall be construed as a reference to the Director within the meaning of section 4 (1) of this Act.(2) Subclause (1) does not apply to any determination under the Statutory and Other Offices Remuneration Act 1975.
14 Continuity of body corporate
The Legal Aid Commission of New South Wales as constituted under this Act, as amended by the Legal Services Commission (Amendment) Act 1985, is a continuation of, and the same legal entity as, the Legal Services Commission of New South Wales constituted under this Act, as in force immediately before the commencement of the Legal Services Commission (Amendment) Act 1985.
15 Continuation of appointment of existing part-time commissioners
Nothing in the Legal Services Commission (Amendment) Act 1985 affects the appointment of a part-time commissioner who was holding office immediately before the commencement of that Act.
16 Existing statutory officers
(1) A person who, immediately before the commencement of the Legal Services Commission (Amendment) Act 1985 (in this clause referred to as the prescribed day), held office as a statutory officer of the Commission (other than as the Deputy Chairman of the Commission) shall cease to hold office as such on the prescribed day.(2) The person who, immediately before the prescribed day, held office as the Deputy Chairman of the Commission shall, on and from that day, be deemed to be appointed as Director of the Commission for the balance of the term for which the person was appointed as Deputy Chairman of the Commission.(3) The person referred to in subclause (2) shall, if otherwise qualified, be eligible for re-appointment as Director of the Commission.(4) A person who, immediately before the prescribed day, held office as a statutory officer of the Commission (other than the Deputy Chairman of the Commission) and who ceases to hold that office on that day by reason of the operation of subclause (1) shall be entitled to be appointed to some position in the Public Service.
Nothing in the Legal Services Commission (Amendment) Act 1985 affects the liability under section 46 of this Act of a legally assisted person to make any payment in respect of the costs and expenses of legal services provided to the person, as such a person, as a consequence of legal aid granted to the person before the commencement of that Act.
Part 5 Savings, transitional and other provisions relating to the merger
In this Part:merger day means the day appointed and notified under section 2 (2) of the Legal Aid Commission (Amendment) Act 1987.
(1) An application for legal aid made to the Australian Legal Aid Office which has not been determined immediately before the merger day shall be deemed to be an application under section 31.(2) Where, before the merger day, the Australian Legal Aid Office was performing services on behalf of a person by way of legal aid, then, as from that day, the services shall, so far as is necessary, continue to be performed on behalf of the person by the Commission.(3) A private legal practitioner who, immediately before the merger day, was acting for a person in a matter in the course of the operations of the Australian Legal Aid Office shall, in respect of that matter, be deemed to be a private legal practitioner to whom the Commission has assigned work under this Act.(4) Services:(a) performed on or after the merger day by the Commission on behalf of a person under subclause (2), or(b) carried out on or after the merger day by a private legal practitioner under subclause (3),shall, notwithstanding anything to the contrary in this Act, be performed or carried out subject to any conditions attached to, and the policies of the Australian Legal Aid Office in relation to, the performance or carrying out of the services before the merger day.(5) An eligible person who becomes a member of staff of the Commission under this clause may, within the period of 3 months after becoming such a member, make an election to contribute to the State Public Service Superannuation Fund pursuant to section 12 (7) of the State Public Service Superannuation Act 1985.(6) On and from the merger day, the Director shall be deemed to be the solicitor for a person in any proceeding in a court, or in any other matter, in which an officer or employee of the Australian Legal Aid Office was acting in the course of the operations of that Office as the solicitor for the person immediately before that day.
21 Transfer of ALAO staff to Commission
(1) In this clause:eligible person means an officer employed in the Australian Legal Aid Office in New South Wales within the meaning of section 21 of the Commonwealth Legal Aid Act 1977 of the Commonwealth.
(2) Where an agreement or arrangement between the State and the Commonwealth under section 72A so requires, eligible persons:(a) shall be appointed and employed as members of staff of the Commission in accordance with that agreement or arrangement, and(b) shall be appointed and employed under such terms and conditions and shall retain such rights as are specified in that agreement or arrangement.(3) Subclause (2) has effect notwithstanding anything to the contrary in the Public Service Act 1979.(4) If an eligible person who becomes a member of staff of the Commission under this clause continues to be a contributor for benefits under the Superannuation Act 1976 of the Commonwealth, the Commission shall make, as employer contributions in respect of the contributor, such payments as are specified in an agreement or arrangement under section 72A, to the person or authority, and at the times, specified in that agreement or arrangement.(5) An eligible person who becomes a member of staff of the Commission under this clause may, within the period of 3 months after becoming such a member, make an election to contribute to the State Public Service Superannuation Fund pursuant to section 12 (7) of the State Public Service Superannuation Act 1985.
Any agreement or arrangement entered into before the commencement of section 72A, and anything done before that commencement in accordance with any such agreement or arrangement, that would have been valid if entered into or done after that commencement is validated.
23 Re-constitution of Commission
Nothing in the Legal Aid Commission (Amendment) Act 1987 affects:(a) the continuity of the Commission, or(b) the appointment of a part-time commissioner who was holding office immediately before the merger day.
Part 6 Savings, transitional and other provisions consequent on the enactment of the Legal Aid Commission (Amendment) Act 1989
In this Part:amending Act means the Legal Aid Commission (Amendment) Act 1989.
(1) Section 56, as in force immediately before the commencement of this clause, applies to determinations made under section 34 before that commencement as if the amending Act had not been enacted.(2) An appeal against a determination made under section 34 before the commencement of this clause, whether lodged before or after that commencement, is to be dealt with as if the amending Act had not been enacted.
Any determination made, as referred to in section 35, before the commencement of this clause (being a determination that could have been made had that section, as amended by the amending Act, been in force when the determination was made), and anything done or omitted as a consequence of such a determination, has the same effect as if that section, as so amended, had then been in force.
27 Interest on unpaid contributions
(1) Interest under section 71A is not payable in respect of any period occurring before the commencement of this clause.(2) Interest under section 71A is payable in respect of any period occurring after the commencement of this clause on amounts that have become unpaid before that commencement and on amounts that become unpaid after that commencement.
28 Variation of grant of legal aid
Section 38, as amended by the amending Act, applies in relation to a variation of a determination under that section whether the determination was made before or after the commencement of this clause.
29 Payment of costs to private legal practitioners
Section 43A, as amended by the amending Act, applies to the payment of fees in respect of work performed by a private legal practitioner before or after the commencement of this clause.
Section 72 (2) does not apply to proceedings for an offence arising under section 26, 32 or 41 that was allegedly committed before the commencement of this clause.
Part 7 Validation and transitional provisions consequent on the enactment of the Legal Aid Commission (Amendment) Act 1990
In this Part:the amending Act means the Legal Aid Commission (Amendment) Act 1990.
32 Validation of conditions and agreements concerning legal aid
(1) This clause applies to a condition or agreement which was (or was purportedly) imposed or entered into under either of the former Acts or this Act, before the commencement of the amending Act, in connection with the provision of legal aid to a person and which:(a) in the case of a condition, required or purportedly required the person to grant a charge over property as security for the payment of certain amounts by the person in connection with the provision of that legal aid, or(b) in the case of an agreement, required or purportedly required the person to pay money to the Commission, the Legal Services Commission or the Legal Aid Committee of the Law Society of New South Wales in connection with the provision of that legal aid.(2) The following provisions apply to and in respect of the conditions and agreements to which this clause applies and any charges arising or purportedly arising from those conditions:(a) the conditions, agreements and charges are validated,(b) the due enforcement or purported enforcement of any such charge or agreement, and the recovery of money pursuant to that enforcement, before the commencement of the amending Act is validated,(c) any such enforcement and recovery are authorised to be continued or commenced and proceeded with after the commencement of the amending Act, up to the limit imposed by subclause (3).(3) Any such agreement or charge is not to be enforced after the commencement of the amending Act so as to recover more than the sum of:(a) the costs, assessed as between solicitor and client, of the legal services provided to the person as a legally assisted person, and(b) any disbursements (including barrister’s fees) and out-of-pocket expenses incurred in or in connection with the provision of those services, and(c) any expenses of the kind referred to in section 34B (1) (b) and payable under the agreement or charge, and(d) any interest payable under the agreement or charge in respect of the amounts referred to in paragraphs (a)–(c).(4) The validations effected by this clause are to be considered to have taken effect as from the time of the action or purported action to which they relate.
33 Transitional—offers of compromise
The amendments made by the amending Act to section 47 of this Act extend to proceedings begun before the commencement of the amending Act, but do not apply to offers of compromise made before that commencement.
Part 8 Transitional provisions consequent on the enactment of the Legal Aid Commission (Amendment) Act 1992
34 Continuation of trust account
(1) The trust account maintained for the purposes of section 64A before the commencement of the Legal Aid Commission (Amendment) Act 1992 is, on that commencement, taken to be established for the purposes of section 64A as substituted by that Act.(2) The trust account maintained for the purposes of section 64A after the commencement of the Legal Aid Commission (Amendment) Act 1992 is a continuation of the trust account maintained for the purposes of that section before that commencement.
(1) On and from the commencement of the Legal Aid Commission (Amendment) Act 1992, a reference in any other Act or in any instrument made under any Act or in an instrument of any other kind, to the Director of the Legal Aid Commission is taken to be a reference to the Managing Director.(2) On and from the commencement of the Legal Aid Commission (Amendment) Act 1992, references in clauses 13 (1) and 20 (6) to the Director are taken to be references to the Managing Director, unless the Managing Director does not hold a current practising certificate, in which case they are taken to be references to the member of staff appointed for the time being under section 23A.
A person holding office as Director of the Commission immediately before the commencement of the Legal Aid Commission (Amendment) Act 1992 is, on that commencement, taken to have been appointed as Managing Director of the Commission under section 14 (1) as substituted by that Act.
Part 9 Transitional provisions consequent on enactment of Legal Aid Commission Amendment Act 1996
In this Part:amending Act means the Legal Aid Commission Amendment Act 1996.
38 Variation of certain grants of legal aid
An amendment made to section 38 by Schedule 4 [9], [10] or [11] of the amending Act extends to a grant of legal aid made in respect of a person before the commencement of the amendment but only if legal aid in respect of the person has not ceased to be provided at that commencement.
An amendment made to section 40 by the amending Act extends to work that was assigned to a private legal practitioner before the commencement of the amendment and for which a bill of costs was not provided before that commencement.
40 Payment of costs in cases of fraud and improper behaviour
Section 43, as substituted by the amending Act, extends to costs and expenses provided to a person as a legally assisted person before the section was substituted.
41 Official investigations into allegations against private legal practitioners
Section 43A (1A), as inserted by the amending Act, extends to an official investigation commenced but not completed before the commencement of the subsection.
42 Deferral or refusal of payment of certain fees to private legal practitioners
Section 43A (2A), as inserted by the amending Act, extends to fees incurred by the Commission before the commencement of the subsection.
43 Orders for recovery of money from certain private legal practitioners
Section 43B, as inserted by the amending Act, extends to money paid by the Commission to a private legal practitioner before the commencement of the section.
Section 44 (5), as inserted by the amending Act, does not apply to a direction given before the commencement of the subsection.
The amendment made to section 46 by the amending Act extends to legal services provided to a legally assisted person before the commencement of the amendment but only if a determination under section 46 (as in force immediately before that commencement) has not been made in respect of those services.
46 Orders for payment of costs awarded against legally assisted persons
Section 47 (4) (b1) or (e), as inserted by the amending Act, does not apply to an order for costs made before the commencement of the paragraph.
Section 69 (10), as inserted by the amending Act, extends to a delegation made before the commencement of the subsection.
Section 71A (1) (b1), as inserted by the amending Act, does not apply to a direction given before the commencement of the paragraph.
Part 10 Provisions consequent on enactment of Legal Aid Commission Amendment Act 1997
In this Part:the amending Act means the Legal Aid Commission Amendment Act 1997.
50 Commissioners cease to hold office
(1) A person holding the office of commissioner under section 8 (1) (b1) immediately before the repeal of that paragraph by the amending Act ceases to hold that office on that repeal.(2) On and from the repeal of section 8 (1) (b1), and until the commencement of Schedule 1 [1] to the amending Act:(a) a reference in section 7 to 10 commissioners is taken to be a reference to 8 commissioners, and(b) section 7 (b) is to be construed as if the figure 9 were the figure 7, and(c) a reference in clause 3 of Schedule 3 to 6 commissioners is taken to be a reference to 5 commissioners.
51 No compensation for loss of office
A person who ceases to hold office as provided by clause 50 is not entitled to any remuneration or compensation because of the loss of the office concerned.
52 Determination of application
Section 34 (4A), as inserted by the amending Act, does not apply to a determination or a redetermination made, but not notified to the applicant, before the commencement of this clause.
The amendments made to section 56 by Schedule 1 [8] to the amending Act do not apply in respect of a determination or redetermination of an application for legal aid, or in respect of a variation or redetermination of a variation of a grant of legal aid, being a determination, redetermination or variation made (and whether or not notified to the applicant) before the commencement of those amendments.
Part 11 Provisions consequent on enactment of Legal Aid Commission Amendment Act 2000
In this Part:amending Act means the Legal Aid Commission Amendment Act 2000.
(1) A person who held office as a part-time commissioner immediately before the commencement of Schedule 1 [7] to the amending Act is taken, on that commencement, to be appointed as a part-time member of the Board under section 14 for the balance of his or her term of office as part-time commissioner.(2) A reference in any Act (including provisions of this Act as continued in force by clause 57) or instrument to a commissioner of the Commission is taken to be a reference to a member of the Board.
(1) The person appointed as Managing Director immediately before the commencement of Schedule 1 [7] to the amending Act is taken, on that commencement, to be appointed as Chief Executive Officer under section 16 for the balance of his or her term of appointment as Managing Director.(2) A reference in any Act (including provisions of this Act as continued in force by clause 57) or instrument to the Managing Director of the Commission is taken to be a reference to the Chief Executive Officer of the Commission.
57 Legal Aid Review Committees
(1) The substitution of section 54 by Schedule 1 [19] to the amending Act does not affect a Legal Aid Review Committee in existence immediately before the commencement of that item. Until such time as the Committee is reconstituted in accordance with section 54 (as substituted by the amending Act):(a) the members of the Committee continue to hold office as such as if that section had not been substituted, and(b) the substitution of clause 8 of Schedule 7 by Schedule 1 [43] to the amending Act has no effect in relation to that Committee.(2) A member of a Legal Aid Review Committee referred to in subclause (1) is eligible (if otherwise qualified) to be reappointed as a member of a Committee that is reconstituted in accordance with section 54 (as amended by the amending Act).(3) On the day that a Committee is reconstituted in accordance with section 54 (as substituted by the amending Act), any person who held office as a member of the Committee immediately before that day:(a) ceases to hold that office, and(b) is not entitled to any remuneration or compensation because of the loss of that office.