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 5of the Bill establishes the Commission
(and stipulates the name as the Australian Law Reform
Commission).
Clause 8stipulates 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 11provides 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 Australia
Last updated: 20 September 1996
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