Criminal Law (Legal Representation) (Reimbursement of Commission) Amendment Bill

Second Reading

I am pleased to introduce the Criminal Law (Legal Representation) (Reimbursement of Commission) Amendment Bill 2020, a bill that amends the Criminal Law (Legal Representation) Act 2001. The bill makes two changes to the process by which the Legal Services Commission, South Australia's primary legal aid provider, is reimbursed for the costs of expensive criminal trials. The changes are designed to ensure that the Legal Services Commission is subject to a consistent, reliable maximum cost when taking on a serious criminal case.

The Criminal Law (Legal Representation) Act aims to ensure that all people have access to legal representation for the trial of a serious offence in South Australia. It was introduced in response to the 1992 High Court case of Dietrich v The Queen. The High Court held that if a person charged with a serious criminal offence is unable to gain legal representation, the trial should be adjourned or stayed until he or she can find such representation.

The Criminal Law (Legal Representation) Act gives persons charged with a serious offence a right to legal representation from the Legal Services Commission. The costs of this assistance are split between the Legal Services Commission, the government and in some cases the accused person themselves. The Legal Services Commission has recently requested some alterations to the way that these costs are shared with the government.

If the costs of a serious criminal case exceed a set level, known as the funding cap, the Criminal Law (Legal Representation) Act allows the Legal Services Commission to apply to the government for reimbursement of the excess costs. The funding cap is currently set at $50,000 for a case with a single defendant and $100,000 for a case with multiple defendants. It recently came to my attention that the Criminal Law (Legal Representation) Act does not allow the costs of some preliminary criminal processes to count towards the Legal Services Commission's reimbursement claim. They are considered separate, non-reimbursable expenses.

The Criminal Law (Legal Representation) Act only requires the Legal Services Commission to provide legal representation after the defendant is committed to the Supreme Court or District Court for trial. However, often the defendant meets the Legal Services Commission's standard criteria for legal assistance, and so they also receive legal assistance during the preliminary committal processes that occur in the Magistrates Court. Because these earlier costs cannot count towards a reimbursement claim, the Legal Services Commission will face uncertain costs if they take on the serious criminal case in the early stages of the criminal process. Above, all it is the government’s position, which is reflected in this bill, that the Legal Services Commission should be able to be certain when they take on a serious criminal case that they will not have to spend more than the funding cap.

Clause 4 of the bill broadens the definition of 'legal assistance costs' to make it clear that all costs spent on a serious criminal case can be counted toward the total costs for the purposes of a reimbursement claim. The new definition of 'legal assistance costs' includes the cost of providing the assistance to which the defendant was legally entitled under the Criminal Law (Legal Representation) Act as well as any other discretionary assistance that the Legal Services Commission provided to the defendant in relation to the same case. However, the total legal assistance costs will not include an appeal against the sentence or conviction or any other costs prescribed by regulations.

This new definition ensures that the reimbursement exercise reflects the true cost of the criminal case from the time the charges were laid to when they are finalised. The Legal Services Commission also currently faces uncertain costs when a single set of serious criminal charges needs to be heard across multiple trials. This may be required due to practical issues such as courtroom size, as a complex criminal matter may have multiple defendants, each with their own legal team. It may also be required due to evidentiary issues.

The Legal Services Commission has informed me that split trial situations subject them to an additional funding burden. The Criminal Law (Legal Representation) Act applies the funding cap to each individual trial, even if the matter started as one set of charges. Therefore, the Legal Services Commission may take on a case expecting to spend just $50,000 and end up needing to spend $100,000 if two trials are required.

The bill allows the Legal Services Commission to treat separate but related trials as a single case for the purposes of the funding cap. Upon application to the Attorney-General by the Legal Services Commission, and if the Attorney-General is satisfied that it is appropriate in the circumstances, multiple related trials will be considered a single criminal case for the purposes of reimbursement, and the total legal assistance costs may be calculated accordingly. The funding cap will be applied once to the total costs of all related trials.

The bill ensures that the Legal Services Commission is subject to a consistent, predictable cost when taking on a serious criminal case. It seeks to ensure the Legal Services Commission can fulfil its role of providing legal assistance for serious criminal matters whilst also continuing to fund their other important work of providing community legal advice and education as well as representation in family law, domestic violence and mental health matters.

This is a necessary legislative change and it reflects the part of my justice agenda that is directed to ensuring that our justice policies and legislation reflect contemporary South Australian needs. I commend the bill to members and seek leave to insert the explanation of clauses into Hansard without my reading the same.

 

Explanation of Clauses

Part 1—Preliminary

1—Short title

2—Commencement

3—Amendment provisions

These clauses are formal.

Part 2—Amendment of Criminal Law (Legal Representation) Act 2001

4—Amendment of section 4—Interpretation

This clause inserts and substitutes definitions for the purposes of the measure.

The definition of assisted person is substituted and is proposed to mean a person for whom legal assistance of a kind mandated under section 6(1) or (1a) of the Act is, or has been, provided.

The definition of legal assistance costs is substituted and is proposed to be expanded to include all costs of providing legal assistance to an assisted person in relation to the relevant trial (see section 5(2) of the LSC Act) regardless of whether the costs were incurred before or after the person became an assisted person. The proposed definition expressly includes the costs of providing—

(a) legal assistance of a kind mandated under section 6(1) and (1a); and

(b) all other legal assistance (other than prescribed legal assistance) which the person was eligible for and provided with under the LSC Act for matters related to and preliminary or ancillary to the trial, including (without limitation) committal proceedings under Part 5 Division 3 of the Criminal Procedure Act 1921.

For the purposes of the proposed definition of legal assistance costs, prescribed legal assistance is defined as—

(a) legal assistance provided to a person for the purposes of an appeal against conviction or sentence; and

(b) legal assistance of a kind prescribed by the regulations.

For the purposes of the definition of associated proceedings a new subsection (3) is proposed to be inserted to clarify that proceedings may be preliminary or ancillary to a trial whether or not the matter actually proceeds to trial.

5—Substitution of section 18

This clause substitutes a new section 18 in respect of the Commission's right to reimbursement in respect of the costs of providing legal assistance to persons who are assisted persons under the Act.

Proposed new section 18 retains the core elements of the existing section but has been revised to —

(a) apply to criminal cases that may be comprised of multiple related trials (including multiple accused); and

(b) include the costs of providing legal assistance for committal and other proceedings to be included in the tally of reimbursable costs for a criminal case subject to an approved case management plan.

For the purposes of proposed new section 18, trials are related trials if the charges the subject of each trial are founded on the same facts or form, or are a part of, a series of offences of the same or a similar character (whether or not relating to the same accused person).

Schedule 1—Transitional provisions etc

1—Application

The amendments will apply in respect of a criminal case commenced before or after the commencement of the measure. However, if, at the commencement of the amendments, the Legal Services Commission has already been reimbursed in respect of a criminal case (in whole or part), any further entitlement to reimbursement for the case is to be determined under the Act as in force before that commencement.

2—Case management plans

This clause saves existing approved case management plans which will be taken to be approved for the purposes of substituted section 18.

3—Expensive Criminal Cases Funding Agreement

This clause continues the existing Expensive Criminal Cases Funding Agreement for the purposes of the substituted section 18.

Debate adjourned on motion of Hon. A. Piccolo.