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This is a Bill, not an Act. For current law, see the Acts databases.
South Australia
Criminal Law (Legal Representation) (Reimbursement of
Commission) Amendment Bill 2020
A BILL FOR
An Act to amend the
Criminal
Law (Legal Representation) Act 2001
.
Contents
Part 2—Amendment of Criminal Law
(Legal Representation) Act 2001
4Amendment of section
4—Interpretation
Schedule 1—Transitional provisions
etc
3Expensive Criminal Cases Funding
Agreement
The Parliament of South Australia enacts as
follows:
This Act may be cited as the Criminal Law (Legal Representation)
(Reimbursement of Commission) Amendment Act 2020.
This Act comes into operation on a day to be fixed by
proclamation.
In this Act, a provision under a heading referring to the amendment of a
specified Act amends the Act so specified.
Part 2—Amendment
of Criminal Law (Legal Representation)
Act 2001
4—Amendment
of section 4—Interpretation
(1) Section 4(1),
definition of assisted person—delete the definition and
substitute:
assisted person means a person for whom legal assistance of a
kind mandated under section 6(1) or (1a) is, or has been,
provided;
(2) Section 4(1), definition of legal assistance
costs—delete the definition and substitute:
legal assistance costs, in respect of an assisted person,
means all costs of providing legal assistance to the 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 and
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
;
(3) Section 4(1)—after the definition of LSC Act
insert:
prescribed legal assistance means—
(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;
(4) Section 4—after subsection (2) insert:
(3) For the purposes of the definition of associated
proceedings, proceedings may be preliminary or ancillary to a trial
whether or not the matter actually proceeds to trial.
Section 18—delete the section and substitute:
18—Reimbursement of Commission
(1) The Commission is
entitled to be reimbursed by the Treasurer in respect of the costs of providing
legal assistance for a criminal case involving 1 or more assisted persons
if—
(a) the case is subject to a case management plan approved by the
Attorney-General under the Expensive Criminal Cases Funding Agreement;
and
(b) the Commission complies with the approved case management
plan.
(2) The amount the Commission is entitled to be reimbursed under
subsection (1)
is the amount by which the net amount of legal assistance costs for the
case exceeds the relevant funding cap.
(3) A case
management plan may relate to a criminal case that is comprised of more than
1 trial if the trials are related trials and the Attorney-General is
satisfied, in the circumstances of the case, that it is appropriate for the
trials to be combined under a single case management plan.
(4) Despite the requirements of
subsection (3)
, a retrial arising out of a trial may, in any case, be included in a case
management plan as part of the criminal case of the first trial.
(5) Subject to
subsection (3)
, if a case management plan complies with the criteria for approval fixed
in the Expensive Criminal Cases Funding Agreement, the Attorney-General
must approve the case management plan.
(6) If the Commission, after making reasonable attempts to reach agreement
with the Attorney-General on a case management plan, fails to obtain the
Attorney-General's approval, the Commission may, by notice in writing to an
assisted person to whom the case management plan relates, withdraw legal
assistance for that person.
(7) The Commission must, in each of its annual reports, publish the text
of the Expensive Criminal Cases Funding Agreement as in force at the end
of the year to which the report relates.
(8) In this section—
Expensive Criminal Cases Funding Agreement means the
agreement between the Commission and the Attorney-General governing the approval
of case management plans for the purposes of this section and includes that
agreement as amended from time to time;
funding cap means an amount fixed as the funding cap for
criminal cases by the Commission for a particular financial year (which may vary
according to the circumstances to which it is expressed to apply);
net amount of legal assistance costs in respect of a criminal
case subject to a case management plan, means the gross amount of legal
assistance costs for each assisted person to whom the case management plan
relates less the amount of any payments the Commission has received or has a
reasonable prospect of recovering from each assisted person (whether under this
Act or the LSC Act) or a financially associated person;
related trials—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) The amendments to the
Criminal
Law (Legal Representation) Act 2001
enacted by this Act apply in respect of a criminal case commenced before
or after the commencement of this Act and irrespective of whether, before that
commencement—
(a) legal assistance of a kind mandated under section 6(1) or (1a) of
the
Criminal
Law (Legal Representation) Act 2001
had been provided for the case; or
(b) a case management plan had been approved for the case by the
Attorney-General under the Expensive Criminal Cases Funding
Agreement.
(2) However, if, at
the commencement of this Act, the Legal Services Commission has been reimbursed,
in whole or part, under section 18 of the
Criminal
Law (Legal Representation) Act 2001
in respect of a criminal case, any further entitlement to reimbursement in
respect of the case is to be determined under the
Criminal
Law (Legal Representation) Act 2001
as in force before that commencement.
A case management plan approved by the Attorney-General in respect of a
criminal case for the purposes of section 18 of the
Criminal
Law (Legal Representation) Act 2001
as in force immediately before the commencement of this Act is, after that
commencement, taken to be a case management plan approved by the
Attorney-General in respect of that criminal case for the purposes of
section 18 of the
Criminal
Law (Legal Representation) Act 2001
(as substituted by this Act).
3—Expensive
Criminal Cases Funding Agreement
The Expensive Criminal Cases Funding Agreement as in force under
section 18 of the
Criminal
Law (Legal Representation) Act 2001
immediately before the commencement of this Act continues as the
Expensive Criminal Cases Funding Agreement in force under section 18
of the
Criminal
Law (Legal Representation) Act 2001
after that commencement.