Bills Digest no. 120 2007–08
Law Officers Legislation Amendment Bill
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Law Officers Legislation Amendment
Date introduced: 28 May 2008
The day after Royal
relevant links to the Bill, Explanatory Memorandum and second
reading speech can be accessed via BillsNet, which is at http://www.aph.gov.au/bills/.
When Bills have been passed they can be found at ComLaw, which is
To amend the Law Officers Act
1964 and the Long Service Leave (Commonwealth
Employees) Act 1976 to provide the Solicitor-General with
long leave entitlements in accordance with other senior members of
the Australian Public Service.
In accordance with section 7 of the Law Officers Act
1964, the Remuneration Tribunal determines the remuneration
and allowances of holders of full-time public office in
Determination 2007/13 which includes the full-time office of
Solicitor-General. Other determinations which affect the terms and
conditions of employment of the Solicitor-General are:
- Determination 2004/03 Official Travel by Office Holders;
- Determination 2007/09 Recreation leave for full-time holders of
- Determination 2007/07 Compensation for Loss of Office for
Holders of Public Office.
Currently section 16A of the Law Officers Act 1964
which formerly enabled a payment to the Solicitor-General in lieu
of long service leave does not apply to a person appointed as
Solicitor-General after 31 December 1997. This change was made by
the Law Officers Amendment Act 1998.
Section 16A was introduced to the Law Officers Act 1964
in 1983 by the Statute Law (Miscellaneous Provisions) Act
(No.2) 1983. The Deputy Prime Minister at the time, Mr Lionel
Bowen when introducing the Statute Law (Miscellaneous
Provisions) Bill (No.2) 1983 summarised the history
of the provision in the following terms:
The Law Officers Act is being amended to
include a provision, section 16A, enabling the Solicitor-General to
be paid in lieu of long leave. Commonwealth employees have had
entitlement to long service leave since 1943 and the legislation
provides for payment in lieu of taking long service leave. The
provisions were revised in the Long Service Leave (Commonwealth
Employees) Act 1976. Section 10(3) of that Act excludes from the
operation of the Act holders of judicial office and the
Solicitor-General. Since the 1960 s judges have had, by
administrative arrangement, entitlement to long leave and to
payment in lieu where that leave was not taken. In 1979 payment in
lieu of long leave was put on a statutory basis for High Court
justices and judges of federal courts. Unfortunately, at that time
a similar provision for the Solicitor-General was not addressed,
which only became apparent earlier this year when the
Solicitor-General informed the Attorney-General of his intention to
retire later this year.
Under the 1968 amendments of the Law Officers
Act 1964 the Solicitor-General has been entitled since that time to
payment of pension in respect of his period of service on an
equivalent basis to the entitlement for judges of federal courts.
In 1980 the Solicitor-General s salary and allowances were
increased to the same level as was paid to judges of the Federal
Court of Australia. These movements in the Solicitor-General s
entitlements demonstrate a clear intention to equate the
Solicitor-General with the status of a judge of the Federal Court
and the proposed amendment will give effect to that position in
relation to payment in lieu of long leave.
In 1997 the Law Officers Amendment Bill 1997 was
introduced by the then Attorney-General, Mr Daryl Williams. Prior
to 1997 according to the second reading speech, the terms and
conditions of service for the Solicitor-General were similar to
those of a judge of the Federal Court of Australia as set out
above, and included eligibility for a judge s pension and payment
in lieu of unused long service leave on the same basis as for a
judge. Section 16 applied the Judges Pension Act
1968 to the Solicitor-General as if the office of
Solicitor-General were a judge and section 16A provided payment in
lieu of unused long service leave. The Attorney-General stated in
the second reading speech that the government did not consider it
appropriate that these arrangements should apply to the office of
the Solicitor-General. He also stated that the Solicitor-General
should receive superannuation and leave entitlements similar to
those applying to a senior member of the Australian Public Service,
rather than those applying to a judge. These statements clearly
indicate that the Government s intention was to include all leave
entitlements for the office of Solicitor-General. However, the
Law Officers Amendment Act 1998 amended only the
Law Officers Act 1964 and did not remove the bar in the
Long Service Leave (Commonwealth Employees) Act 1976
excluding the office of Solicitor-General from the operation of the
Act. This oversight is being addressed in this Bill.
The Remuneration Tribunal has determined the remuneration and
allowances of the Solicitor-General since 1985. Since 1997 section
16A has not applied to the office holder of Solicitor-General and
according to the Explanatory Memorandum, there is no longer any
person to whom section 16A applies. It is therefore a spent provision and able to be
repealed by this bill. The bill removes the bar in subsections
10(3) and (4) in the Long Service Leave (Commonwealth
Employees) Act 1976 to enable the office of Solicitor-General
to be subject to the operation of that Act and for the office to
receive long service leave entitlements which will apply as from 31
According to the Explanatory Memorandum, the amendments will
have no significant financial impact.
Item 1, proposed section 7A provides that
section 6 and 7 will operate subject to the provisions of the
Long Service Leave (Commonwealth Employees) Act 1976 which
will allow the office holder of Solicitor-General to accrue long
service leave and to receive payment in lieu for unused long
service leave in line with the terms and conditions of other senior
members of the Australian Public Service.
Item 2 repeals section 16A as it is a spent
section and no longer has any application.
Items 3 and 4 amends subsections 10(3) and (4)
by removing references to the Solicitor-General.
Item 5 provides retrospective application, that
is the provisions as amended by the Law Officers Legislation
Amendment Bill 2008 will apply to a person holding the office
of Solicitor-General appointed after 31 December 1997.
The current bill corrects an anomaly that occurred when
amendments were made in 1997 to the Law Officers Act 1964
to align the terms and conditions of the office of
Solicitor-General with those of senior members of the Australian
Public Service so as to ensure that long service leave entitlements
will apply as from 31 December 1997.
3 June 2008
Bills Digest Service
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