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Legislative Assembly for the ACT: 1997 Week 12 Hansard (13 November) . . Page.. 4069 ..

MR HUMPHRIES (continuing):

From this in-principle agreement, which was the first in Australia, there followed negotiations on a detailed agreement to implement the in-principle terms. The Commonwealth conducted its negotiations separately with each jurisdiction and, at its request, in confidence. Agreements the Commonwealth has reached with the various jurisdictions are not identical, but they are based on the same fundamental principle - that the Commonwealth will decide how Commonwealth money will be spent according to prescribed guidelines and priorities.

Particular features of the agreement which has been negotiated by the Commonwealth with the ACT are as follows: The agreement establishes a wide range of Commonwealth priorities, but it allows the commission to establish narrower priorities from within those wider parameters and to submit those more limited priorities in a work plan and budget for approval by the Commonwealth. Specified financial liabilities are to be met by the Commonwealth in the event of termination of the agreement by the Commonwealth. The former agreement had no effective provision for the sharing of administrative liabilities in the event of termination of the agreement. Cost ceilings are established for expensive Commonwealth cases. The limits are $15,000 for separate representation of children, $10,000 for other family law matters, and $40,000 for criminal matters. The agreement does allow for the commission to exceed those caps in exceptional circumstances.

The agreement does not prescribe a revised structure for the Legal Aid Commission but does require the Territory and the Commonwealth governments to consult with a view to restructuring the board of management of the commission. It has been made clear to the Commonwealth Attorney-General and his officials that any restructuring proposal must be acceptable to the ACT Legislative Assembly before it can be agreed and implemented.

A number of provisions in the agreement provide for the Territory to direct or arrange with the commission in respect of providing financial and management accountability information to the Commonwealth. Other provisions of the agreement require the commission to deal with classes of matters in particular ways, or to act in accordance with Commonwealth priorities and guidelines for providing aid. This means that the commission will no longer have the power, as it previously did, to set priorities and guidelines for the provision of aid in Commonwealth matters, except in the limited way I have already described. The agreement binds the Territory; but, as the commission is not a party to it, in theory the commission is not bound by it. Hence the need for this legislation currently before the Assembly.

The primary features of the legislation I have introduced to implement the new legal aid agreement with the Commonwealth are as follows: The Bill makes it clear, in clause 5, that the commission will continue to provide legal assistance in Territory matters in accordance with the Legal Aid Act. The Bill also provides for legal aid to be provided pursuant to "funding agreements". A funding agreement is defined to mean an agreement between the Territory and the Commonwealth or another jurisdiction for the provision of legal assistance by the commission in matters arising under the laws of the other jurisdiction, but only where that agreement provides for the full funding, including administrative overheads, of such assistance. Where a funding agreement is in existence, the Bill provides for the Minister to direct the commission to apply the agreement.

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