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Law Officers Amendment Bill 1997
House: House of Representatives
Commencement: On Royal Assent
The Bill amends the Law Officers Act 1964 (Cth) to vary the terms and conditions of service for those holding the office of Solicitor-General. It provides that after 31 December 1997 the terms and conditions of the office of Solicitor-General will be similar to those of senior members of the Australian Public Service. The Bill provides for entitlements to a judge's pension and payment in lieu of long leave to no longer apply to the office of Solicitor-General after 31 December 1997. It also creates a mechanism for calculating the salary rate applicable to a person holding the office of Solicitor-General on 31 December 1997, providing for the calculation of benefits that will be payable to the current Solicitor-General.
The position of Solicitor-General is currently held by Dr Gavan Griffith AO QC whose term in office expires on 31 December 1997.
The statutory role of the position has previously been reviewed twice by legislation. In 1916 Sir Robert Garran, then Secretary of the Department of Attorney-General, was appointed Solicitor-General by the Governor-General with certain powers conferred under statutory regulation. 1
The Solicitor-General Act 1916 (Cth) provided for the delegation of certain other powers, additional to those existing under regulation, to be conferred on the position of Solicitor-General. The legislation, which was intended to delegate administrative and statutory duties to reduce the workload of the Attorney-General, 2 was not uncontroversial. Solicitors-General at the time were in some states Cabinet Ministers and it was suggested that the powers under consideration were political powers. 3
The Law Officers Act 1964 (Cth) repealed the Solicitor-General Act 1916. The position of Solicitor-General was maintained but as an additional office, providing for the Solicitor-General as second law officer of the Commonwealth, to fulfil the functions of counsel for the Crown with entitlements to practice as a barrister. The government of the day stated that the separation of the positions would allow the Solicitor-General, without the departmental and administrative responsibilities attached to the office of head of the Attorney-General's Department, but with a similar relationship as departmental head to the Attorney-General, to provide the function of counsel for the Crown. 4
The Act provided for a salary equivalent to those of permanent heads of the Australian Public Service, and pension rights equivalent to those of judges under the Judges' Pensions Act 1968 (Cth). It provided for financial compensation to holders of the office to cover private practice re-establishment costs in situations where eligibility for a pension did not yet exist, should reappointment not occur. 5
The current role of the Solicitor-General as set out under the Law Officers Act 1964 includes acting as counsel for the Commonwealth, giving opinions on questions of law to the Attorney-General and carrying out such other functions, ordinarily performed by counsel, as requested by the Attorney-General. The position is not part of the Attorney-General's Department. 6
This Bill removes current entitlements relating to pension rights and certain other financial compensatory benefits of the position for future appointees to the office.
Schedule 1 - Amendments
Pension of Solicitor-General
Item 1 inserts a new subsection 16(1AA). The new section provides for section 16 to no longer apply to the office of Solicitor-General after 31 December 1997 removing the application of the Judges' Pensions Act 1968 (Cth).
Item 2 inserts a new subsection 16(11A). The new subsection provides for a meaning of 'appropriate current salary' and calculation mechanism to be applied to the salary rate payable to the position of Solicitor-General on 31 December 1997, the expiry date of the present appointment.
Item 3 repeals the definition of 'appropriate current salary' provided for in existing subsection 16(12).
Payment to Solicitor-General in lieu of long leave
Item 4 inserts a new subsection 16A(1AA) providing for existing section 16A to not apply to the person occupying the office of Solicitor-General after 31 December 1997. The new subsection removes a payment on death or retirement after ten years of service, in lieu of unused long leave, to the holder of the office of Solicitor-General.
The role of Solicitor-General has changed over time. This Bill does not introduce further changes to the nature of the office but to the terms and conditions attaching to it.
The Government states that the compensatory benefits relating to pension and long leave entitlements provided for in the Law Officers Act 1964 are 'not appropriate,' 7 that 'the terms and conditions of service for the new Solicitor-General should be similar to those of a senior member of the Australian Public Service' and additionally that the changes will provide some savings. 8 Entitlements of the current Solicitor-General, as accrued, are preserved.
Section 6(3) of the Law Officers Act 1964 provides that the terms and conditions attached to the office of Solicitor-General may be determined by the Governor-General. Whilst it is proposed that holders of the office after 31 December 1997 will receive superannuation and leave entitlements similar to those applying to senior members of the Australian Public Service, 9 the Bill does not address these proposals in detail.
1 'Judicial Notice', Commonwealth Government Gazette, 9 September 1916: 2561.
2 Prime Minister and Attorney-General, Hon W Hughes, MP, 'Solicitor-General Bill 1916', House of Representatives, Parliamentary Debates, 27 September 1916: 8996.
3 See 'Solicitor-General Bill 1916', Senate, Parliamentary Debates, 28 September, 1916: 9043-4.
4 Attorney-General, Hon B Sneddon, MP, 'Law Officers Bill 1964', House of Representatives, Parliamentary Debates, 22 October 1964: 2219.
6 Commonwealth Department of Attorney-General. Annual Report 1996-97: 270.
7 Attorney-General, D Williams MP. 'Law Officers Amendment Bill 1997', Second Reading Speech, House of Representatives, Parliamentary Debates, 3 December 1997: 11467.
8 'Law Officers Amendment Bill 1997', Explanatory Memorandum: 1.