Victoria Legal Aid (VLA) may remove from the panel for a specified period the name of:
- any private law firm
- any private lawyer who is a partner, director or employee of a private law firm.
Grounds for removal from the panel
VLA’s power to remove members is broad. The Legal Aid Act ('the Act') does not prescribe the grounds for removal. However, the circumstances in which VLA may remove the name of a private law firm or private lawyer from the Section 30 Referral Panel include if they:
- fail or refuse to give VLA or an independent reviewer information required under section 31(3) of the Act (that is, relevant information which VLA or the independent reviewer needs to perform their functions)
- seek payment from an assisted person in breach of section 32(1) of the Act , even if VLA does not prosecute them
- seek payment from VLA for legal services they have not performed for an assisted person
- knowingly provide, or are involved in providing, false information to VLA in breach of section 44(1)(a) or (b) of the Act, even if VLA does not prosecute anyone
- fail to disclose information which they know to be relevant to an application for, or to the provision of, a grant of legal assistance in breach of section 44(1)(c) of the Act , even if VLA does not prosecute them
- habitually take an excessive time to defend people charged with criminal offences or to progress an assisted person’s case
- seek payment from a person for preparing an application for a grant of legal assistance in breach of section 26(1) of the Act
- fail to pursue diligently an award of costs or an Appeal Costs Certificate in favour of an assisted person
- fail to keep enough funds to pay VLA from any money received on behalf of an assisted person
- give false or misleading statements about a grant of legal assistance to a court or to the media and, in doing so, undermine confidence in the legal aid system
- give VLA obviously excessive accounts in assisted matters which are not subject to a fixed fee
- fail to promptly give VLA accounts for counsel’s fees and any disbursements and fail to pay counsel and any other service providers promptly after receiving payment from VLA
- lodge applications for grants of assistance for criminal trials within 14 days of the hearing without reasonable grounds for being late.
Process of removal from the panel
Usually, before taking action to remove the name of the firm or of the lawyer, VLA will seek a written explanation of the alleged conduct from them. If the firm or lawyer gives no explanation or gives an unsatisfactory explanation, then VLA will take action to remove them.
Notice to remove
To remove the name of a private law firm or a private lawyer from the register for the Section 30 Referral Panel, VLA must first:
- write to the private law firm, setting out the reasons for the proposed removal of the firm or of one of its lawyers
- give them a reasonable opportunity to be heard and to show cause why VLA should not remove them.
The notice will usually specify that the law firm or lawyer must give VLA written notice of any intention to show cause within 14 days after the date of the notice.
If the firm or lawyer does not respond within this time, then VLA’s Board of Directors will send the firm or the lawyer (or both, if relevant) a written notice confirming their removal from the panel under section 30(10) of the Act.
The law firm or the lawyer may show cause
If the law firm or lawyer gives written notice of their intention to show cause why they should not be removed, then VLA’s Board of Directors will refer the matter to the chairperson of the panel of independent reviewers. See Reconsideration and review of decisions for further discussion of the panel of independent reviewers.
Process of independent review
If VLA refers the matter to the chairperson of the panel of independent reviewers, then the chairperson must appoint an independent reviewer to hear and determine the matter. The hearing by the independent reviewer is an administrative process; not a judicial process.
Section 30(16B)–(16E) of the Act sets out how the independent reviewer proceeds. The independent reviewer may:
- consider any relevant matters as grounds for removal, refusal or disqualification and is not limited to considering only the grounds set out in VLA’s notice under section 14 or section 15
- regulate their own proceedings
- make a determination by confirming, varying or refusing to confirm the proposed removal, refusal or disqualification, or by substituting their own determination.
Determination by independent reviewer
The independent reviewer must:
- determine the matter as quickly as possible
- advise VLA of their determination
- keep records of their determinations and proceedings under section 30.
Formal notice by VLA of the determination
After the independent reviewer has notified VLA of their determination, VLA must give formal notice of the determination to the private law firm or to the private lawyer concerned.
Decisions under section 30 are final but an administrative remedy may still be available
A decision by VLA or a determination by an independent reviewer under section 30 of the Act is final and cannot be appealed. However, in respect of any decision by VLA or any determination by an independent reviewer under section 30, a private law firm or a private lawyer may take proceedings in the Supreme Court to seek an administrative remedy or relief.
Reviewed 21 February 2022