Bills Digest no. 120 2007–08
Law Officers Legislation Amendment Bill 2008
WARNING:
This Digest was prepared for debate. It reflects the legislation as introduced
and does not canvass subsequent amendments. This Digest does not have
any official legal status. Other sources should be consulted to determine
the subsequent official status of the Bill.
CONTENTS
Passage history
Purpose
Background
Financial implications
Main provisions
Concluding comments
Contact officer & copyright details
Passage history
Law Officers
Legislation Amendment Bill 2008
Date introduced: 28 May 2008
House:
Representatives
Portfolio: Attorney-General
Commencement: The
day after Royal Assent
Links: The 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 at http://www.comlaw.gov.au/.
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 relevant
offices;
- 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[1]
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.[2]
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.[3] 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 December 1997.
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.
Concluding
comments
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.
Moira Coombs
3 June 2008
Bills Digest Service
Parliamentary Library
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