Bills Digest 35 1996-97
Australian Law Reform Commission Bill 1996
WARNING:
This Digest is prepared for debate. It reflects the legislation as introduced
and does not canvass subsequent amendments.
This Digest was available from 27 September 1996.
CONTENTS
Australian Law Reform Commission Bill 1996
Date Introduced: 20 June 1996
House: House of Representatives
Portfolio: Attorney-General
Commencement: On Proclamation after Royal Assent - but no later
than six months after Royal Assent.
To redraft the Law Reform Commission Act 1973 in a modern drafting
style and to make a range of minor amendments to that Act, including:
- a requirement that the Australian Law Reform Commission ('the ALRC'
or 'the Commission') consider complementary laws between the Commonwealth,
States and Territories;
- ensuring that Australia's international treaty obligations are considered
when the Commission gives a report;
- ensuring that the Commission consider the implications of its recommendations
on lowering the costs of justice; and
- providing that only full-time Commissioners can handle financial and
administrative matters.
The Australian Law Reform Commission was established in 1975 as a permanent
national body to consider law reform and provide legal policy advice to
the federal Attorney-General.
In its Report Law Reform: The Challenge Continues (May 1994)
the House of Representatives Standing Committee on Legal and Constitutional
Affairs ('the Committee') examined the history of the Commission and concluded
that, while alternative avenues of law reform advice are available to
the Government, the importance of a permanent law reform agency which
has a statutory existence and an independent from the Government warrants
the continued existence of the Commission. The Report generally endorsed
the work that the Commission has done and affirmed the on-going need for
such a permanent body.
The Report made a number of Recommendations, most of which have been
accepted by the Government - however some were not accepted. The more
significant recommendations of the Committee which were not accepted by
the Government were those which dealt with the progress of implementation
of the Commission's Reports and the process of preparing the Government's
Response to Commission Reports (Recommendations 4 and 7, specifically)(1)
These recommendations were not framed in terms which required a legislative
response. The Australian Law Reform Commission Bill 1996 implements
the recommendations of the Report which require statutory amendments.
The Bill implements all the statutory changes suggested by the
Committee, other than two recommendations which were designed to enable
staff to be appointed under either the Public Service Act 1922 or
the Act which constitutes the Commission. The Government rejected these
recommendations on the grounds that such changes would have imposed too
great an administrative burden on the Commission. For the sake of administrative
ease it was concluded that the Commission should have the freedom to appoint
staff on the terms and conditions that are established under its own Act.
The recommendations that will be implemented by the Bill will make the
following departures from the Law Reform Commission Act 1973:
- the statutory name of the Commission will be changed from the Law
Reform Commission to the Australian Law Reform Commission;
- the Commission will be required to consider proposals for complementary
laws between the Commonwealth, the States and the Territories;
- the Commission will be required to have regard to such of Australia's
international treaty obligations as are relevant (at the moment the
Commission is only required to consider the International Covenant on
Civil and Political Rights);
- the Commission will be required to take into account the implications
of its recommendations on lowering the costs of justice;
- the Commission will be given the statutory power to appoint consultants;
- the role of the Deputy President will be clarified and specific provisions
for the appointment of an acting President will be made;
- a Board of Management will be established (composed of the President,
Deputy President and full time members);
- chief executive officer powers will be given to the President or the
President's delegate; and
- members and staff of the Commission will be given immunity from civil
action if the cause of such action arose while they were engaged in
duties.
The provisions which could be contentious are
- those which will create a clear distinction between full-time and
part-time members and will remove certain powers from the part-time
members of the Commission;
- the provisions regarding Australia's international treaty obligations;
and
- the provisions which require the Commission to have regard to the
'complementarity' of legislation around Australia.
(The latter two provisions were the subject of a dissenting 'Expression
of Concern' in the Law Reform: The Challenge Continues Report.)
The definition of what constitutes a full-time or part-time member is
not made explicit. The recommendations and provisions are clearly designed
to deal with the situation where a Member has another major area of employment
- for instance academics who are part-time Commissioners. However, it
is not clear whether a Commissioner who is employed part-time for reasons
other than that their main occupation is not with the Commission, would
be able to be appointed as a full-time Commissioner. So, for instance,
a Commissioner who works four days a week due to family responsibilities
may be excluded from participating in the Board of Management of the Commission
because they may not be able to be classified as 'full-time Commissioners'.
A minor amendment defining 'full-time' and 'part-time' in terms of primary
occupation would possibly remedy this slight gap in the legislative framework.
The process of updating the form of the legislation has meant that the
Bill has been introduced as a whole new Act rather than as amending legislation.
The Bill contains all the provisions necessary to establish the Commission
however this Digest will only discuss the clauses which constitute a significant
change from the original statute.
Clause 5 of the Bill establishes the Commission (and stipulates
the name as the Australian Law Reform Commission).
Clause 8 stipulates that the President and Deputy President
must be appointed as full-time members. It allows other members to be
appointed as either full or part time members.
Clause 11 provides for the appointment of State and Territory
judges. This provision is slightly expanded from the previous Act which
only provided for State judges to be appointed.
Clause 14 provides for the temporary appointment of part-time
members to act as full-time members. Rather than going through the Governor-General,
as other appointments do, this process is left to the Attorney-General
for administrative convenience.
Clause 15 allows the Attorney-General to direct a part-time member
to perform their duties on a full-time basis.
Clause 21 extends the Commission's existing functions to include:
- reviewing laws with a view to providing improved access to justice;
and
- considering proposals for complementary Commonwealth, State and Territory
laws.
Clause 24 extends the matters the Commission must consider when
performing its functions. These are that the Commission should:
- have regard to all Australia's relevant international obligations
(rather than simply the International Covenant on Civil and Political
Rights, as is currently the situation); and
- have regard to the effect its recommendations may have on the costs
of access to justice.
Clauses 27 - 33 create the Board of Management and specify its
powers. Clause 29 stipulates that only full-time members can be
on the Board.
Clause 44 allows the Commission to appoint Consultants. Under
the old Act the President would appoint Consultants after obtaining the
approval of the Attorney-General. The new provision is in line with the
powers of other statutory authorities.
Clause 50 provides the Commission, its members and its employees
with immunity from civil action when the cause of the action arose while
they were engaged in duties.
Remarks
The support for the Commission has been bi-partisan for most of its
history. This is demonstrated in the Committee's Report (Law Reform:
The Challenge Continues) which is unanimous in its support of the
work of the Commission (while there was an expression of concern voiced
by one Committee member (2) it did not concern the member's basic support
for the Commission).
The Committee took a modest approach with its recommendations. An example
of this approach is that it did not suggest the Commission should be given
the freedom to create its own references. Under the Committee's recommendations
the Attorney-General will be the only person with power to make references
to the Commission (clearly the Commission will have an input into the
Attorney's decision). The Report discussed the benefits and problems of
this approach and concluded that, in order to ensure that the Commission's
work is closely tied into the current political climate, which will in
turn have an effect on the consideration and implementation of reports,
the Attorney-General should continue to have the sole power to make such
references. The recommendations regarding the process of implementation
seem to be a corollary of this approach. But these recommendations (i.e.
Recommendations 4 and 7 regarding Departmental responses to Commission
reports, the need for Departments to monitor the progress of the implementation
of reports and the Commission's involvement in the formulation of Government
responses to Reports) were rejected. Given most recommendations were accepted
this rejection merits some consideration.
- See pp. 30 & 31 of Law Reform: The Challenge Continues.
See further under the Comment section of this Digest, p. 4.
- See pp. 135-136.
Kirsty Magarey Ph. 06 277 2764
26 September 1996
Bills Digest Service
Parliamentary Research Service
This Digest does not have any official legal status. Other sources should
be consulted to determine whether the Bill has been enacted and, if so,
whether the subsequent Act reflects further amendments.
PRS staff are available to discuss the paper's contents with Senators
and Members and their staff but not with members of the public.
ISSN 1323-9031
© Commonwealth of Australia 1996
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Published by the Department of the Parliamentary Library, 1996.
This page was prepared by the Parliamentary Library, Commonwealth of
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Last updated: 20 September 1996
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