Preferred supplier newsletter—June 2020
This month:
- Stop the spread — coronavirus (COVID-19)
- Submitting legal aid application forms
- Youth practitioner certification
- Conflict of interest policy
- Complex criminal case barrister panel
- New Online Application for a Court Event (Magistrates Courts)
- Mental Health Review Tribunal — new contract terms
- Increase to court fees in Family Court and Federal Circuit Court
- Announcements you may have missed
- CPD events
Stop the spread — coronavirus (COVID-19)
LAQ employees and contractors have a duty to take reasonable care for their own health and safety, and that they do not adversely affect the health and safety of others. They also have a duty to cooperate with any reasonable policy or procedure put in place by LAQ relating to health and safety and comply with any reasonable instruction given by LAQ to ensure compliance with WHS legislation. To reduce the risk of COVID-19 transmission, employees and contractors should follow all public health directions.
There are 5 ways we can all help stop the spread of viruses:
- Stay home if you’re sick. If you have COVID-19 symptoms, get tested.
- Clean your hands regularly with soap and water or alcohol-based hand rubs.
- Cover your nose and mouth with a tissue or bent elbow when coughing or sneezing.
- Avoid touching your face, nose and mouth. And avoid shaking hands.
- Keep 1.5 metres away from others as much as you can — think two big steps.
Submitting legal aid application forms
As we enter the COVID-19 recovery period, Legal Aid Queensland is expecting a period of increased demand for legal assistance services. To help with the timely assessment of applications for representation services, we ask lawyers to fully complete and submit relevant applications at the earliest opportunity.
Youth practitioner certification
Preferred suppliers undertaking work on juvenile files or sessions as a Childrens Court duty lawyer should already be aware of the rollout of the mandatory youth practitioner certification training.
In-person training began in October 2019 and online learning modules have been uploaded to Grants Online. The transition period was scheduled to end on 30 June 2020 but has now been extended until 31 December 2020. This means any preferred suppliers undertaking work on juvenile files or sessions as a Childrens Court duty lawyer now have until 31 December 2020 to attend a face-to-face or webinar certification training session.
After this date any practitioners that have not completed the training will not be allocated any further juvenile crime work, including Childrens Court duty lawyer, until they have completed the next available face-to-face or webinar certification training. More face-to-face and webinar training will be available when the COVID-19 restrictions have been lifted. Updates will be published on the For Lawyers web page.
The principal, partners and directors of preferred supplier firms are responsible for ensuring staff at their office who attend to juvenile matters on behalf of Legal Aid Queensland have undertaken the relevant training. If you have any questions about the youth practitioner certification process or training, please email the Youth Certification team.
Conflict of interest policy
Under the practice management standards, clause 1.3, the preferred supplier is to ensure that there is no conflict of interest when requesting or accepting a grant of aid. This is a reminder that this standard applies to all areas of law and is consistent with the Australian Solicitors Conduct Rules which does not permit a solicitor or law practice to act for two or more clients in the same matter where the clients’ interests are adverse and there is a conflict or potential conflict of the duties to act in the best interests of each client (r 11.2).
Recently our office has been made aware of firms acting for or having provided advice to more than one party in family and child protection matters, where the party’s interests are not aligned, and it is not in the clients’ best interests to be represented by the same law firm. For criminal law matters, in response to R v Pham [2017] QCA 43, Legal Aid Queensland developed a Conflict of interest policy – grants of aid for criminal law co-defendants to ensure lawyers acting for legally aided co-defendants comply with their ethical obligations to act in the best interests of their clients.
Legal Aid Queensland applies:
- a one client per law practice policy under which any law practice, including Legal Aid Queensland, is able to act for only one of two or more co-defendants, except as provided by this policy and
- a one client per barrister policy under which barristers, including Legal Aid Queensland in-house counsel, are able to act for only one of two or more legally aided co-defendants.
For preferred supplier private law practices, different lawyers in the same practice can represent co-defendants only with the approval of an external review officer. External review officers, in deciding whether to approve different lawyers in the same practice representing co-defendants, must be satisfied each of the requirements of Rule 11 of the Australian Solicitors Conduct Rules can be met by the lawyers and law practice.
It is essential firms comply with their obligations under the practice management standards and the conflict of interest policy. Acting in matters where there is a perceived or actual conflict of interest is inconsistent with practitioners’ obligations under the Australian Solicitors Conduct Rules and is also a breach of the firm’s obligations under the preferred supplier agreement.
Complex criminal case barrister panel
In June 2016, Legal Aid Queensland established a panel of barristers who are to be used for complex criminal case matters. A complex criminal case is a committal, trial, sentence, Mental Health Court hearing, appeal or a matter under the Dangerous Prisoners (Sexual Offenders) Act 2003, where the expensive case grant of legal assistance has been sought or issued or is likely to be sought or issued. Only barristers approved to this panel are to be briefed in these matters. It is a requirement under the preferred supplier agreement, clause 4.17(e) that if Legal Aid Queensland implements an approved list of counsel, the preferred supplier must only brief counsel who is included on that list, unless Legal Aid Queensland otherwise approved.
A search is available on the Legal Aid Queensland website to locate barristers that have been approved to undertake complex criminal case matters. Preferred suppliers must ensure when briefing barristers in a complex criminal case, that the barrister is on the panel. Please be aware, if barristers are briefed that are not on the panel, LAQ may withhold payment.
Barrister application documents are available from the website. For more information, please email the barrister panel.
New Online Application for a Court Event (Magistrates Courts)
From 8 July 2020 the Queensland Magistrates Courts Online Application for a Court Event form will be available for use by lawyers in adult criminal matters.
The form can be used to seek an order for:
- a sentence date (including a short plea, lengthy plea or contested sentence)
- an adjournment other than of a hearing
- a date for a hearing of an application (including a bail application or a directions hearing)
- a direction by the Court (including a direction for the provision of a brief of evidence).
The matter must already have a listing date.
The form is available from the Queensland Courts website online application for a court event (Magistrates Courts). At this stage, the form should only be used by lawyers in adult criminal matters.
The form can be used for all Magistrates Court locations across Queensland. Practice Direction 7 of 2020 – Online Court Event Applications has been issued to support the use of the form.
The form replaces the current Apply for an adjournment form available on the Queensland Courts website which can only be used for matters in the Brisbane Magistrates Court. Email questions about the use of this form.
Mental Health Review Tribunal — new contract terms
LAQ has negotiated a further contract with Queensland Health for delivering representation services in the Mental Health Review Tribunal. The new contract is effective from 1 July 2020 and is essentially an extension of the current arrangements for representation in line with section 740(3) of the Mental Health Act 2016, which imposes a statutory obligation on the tribunal to appoint a representative in the following types of hearings:
- where the Attorney-General is represented
- for hearings of applications to perform electroconvulsive therapy
- when the hearing relates to a minor
- for fitness for trial hearings
- other hearings where the tribunal appoints a lawyer to represent a person where it is considered to be in that person’s best interests.
Representation pursuant to these arrangements (MHRT Service Orders) should not be confused with representation in other types of MHRT hearings where clients are required to apply for representation via the usual application process and need to address the relevant means and merit test guidelines.
There is a panel of practitioners (separate to the preferred supplier panel) who have been required to undergo an accreditation process to undertake the Service Order work. LAQ’s Dispute Resolution Services is responsible for allocating the work to practitioners once they are notified by the tribunal of an appointment. The current Service Order panel is due to expire on 30 November 2020, and at some time before this LAQ will be inviting practitioners to submit applications to do this work.
The new contract incorporates a number of changes to the current arrangements:
- The amount of preparation time allocated to hearings has increased from two to three hours. This takes into account feedback from practitioners, who have identified their preparation time frequently exceeded the allocated two hours, and analysis of time-recording data from in-house practitioners.
- The base per-hour rate has increased to $132. The fee for a Service Module (where the preparation, client consultation and representation module are claimed) will be $924, taking into account the additional preparation time. The new fee structure (including the additional preparation allocation) will apply to work which is allocated post 1 July 2020.
- A practitioner can be paid for the representation module where the hearing is cancelled or adjourned within two business days before the hearing is held. The previous timeframe of 48 hours was considered insufficient where a practitioner was advised on a Friday afternoon that a hearing on Monday was going to be cancelled, leaving little or no time to plan for other work.
- There are new requirements for situations where there is a request for transfer of a Service Module to another practitioner. The first practitioner should provide timely notification to LAQ and a sufficient justification for the transfer (such as an ethical issue that was not apparent at the point of allocation), otherwise the first practitioner may not receive payment for the Service Module.
- There is a requirement to ensure legal representation is provided in line with any practice directions issued by the MHRT (the practice directions are set out on the MHRT resources web page).
- There are some changes to payment for travel. The mileage and travel time will be charged from either the practitioner’s business place to the place of consultation or hearing, or for the actual travel, whichever is the lesser. Reasonable parking costs will continue to be reimbursed, however tolls will not. The minimum travel by motor vehicle which will be reimbursed is a 35km round trip, which is unchanged from the current agreement. However, as from 1 July, travel which exceeds 150km (round trip) must be approved before undertaking the travel. All travel must be undertaken in a way that is most economical as to cost and allocations to practitioners will be considered from this perspective. Mileage is payable at the rate of 70c each kilometre and travel time is $68 each hour.
The new contract also imposes a requirement on LAQ to ensure all practitioners appearing in the MHRT meet the Department of Health Vaccine Preventable Disease (VPD) screening requirements by 30 September 2020. This is consistent with ongoing requirements for employees or contractors who spend time working in Queensland Health facilities to supply documentary evidence they are either vaccinated against or that they are not susceptible to the following VPDs: Hepatitis B; Measles, Mumps, Rubella (MMR); Varicella (Chicken Pox); and Pertussis (Whooping Cough).
A serology (blood test) organised via a GP, confirming a person is not susceptible to Hepatitis B, MMR, and Varicella, would constitute sufficient proof for the purposes of this new requirement. It is likely most people would have been subjected to a vaccination regime in relation to these VPDs during their childhood. The vaccination for Pertussis involves a booster every ten years, so proof of having a booster within the previous ten years would be required.
LAQ will be contacting practitioners who are currently on the Service Order panel to ensure they are cognisant of this requirement and aware of the need to furnish the relevant documentation to LAQ before 30 September 2020. The requirement will also be incorporated into the accreditation requirements for any new practitioners who seek accreditation for the MHRT work. Practitioners who cannot comply with this requirement will not be able to undertake MHRT work beyond 30 September 2020.
If you have a question about MHRT Service Order issues, please email Kate Volk.
Increase to court fees in Family Court and Federal Circuit Court
The court fees payable in the Family Court and Federal Circuit Court are changing from 1 July 2020. These fees are set by Federal Government Regulations - Family Law (Fees) Regulation 2012.
For more information see the news items below:
Announcements you may have missed
During June, the following announcements were posted to the For Lawyers page:
All firms are encouraged to regularly check the For Lawyers announcements page to ensure you are up to date with any changes.
CPD events
Due to the evolving pandemic, the difficult decision was made to cancel all CPD events until 30 June 2020. As Queensland approaches the COVID-19 recovery period and a recovery action plan is established, Legal Aid Queensland will be able to consider future CPD events and will keep you updated.
All recorded CPD events from the 2019–20 CPD year are available for current preferred suppliers on Grants Online in the Information resources menu.
The Queensland Law Society has also released free CPD resources for members to help practitioners meet their CPD requirements.