Law Officers Act 1964
Act No. 91 of 1964 as amended
This compilation was prepared on 26 June 2008
taking into account amendments up to Act No. 26 of 2008
The text of any of those amendments not in force
on that date is appended in the Notes section
The operation of amendments that have been incorporated may be
affected by application provisions that are set out in the Notes section
Prepared by the Office of Legislative Drafting and Publishing,
Attorney‑General’s Department, Canberra
Contents
1 Short title [see Note 1]
2 Commencement [see Note 1]
4 Interpretation
5 Office of Solicitor‑General
6 Appointment of Solicitor‑General
7 Remuneration and allowances of Solicitor‑General
8 Resignation
9 Solicitor‑General not to undertake other work
10 Vacation of office
11 Acting Solicitor‑General
12 Functions of Solicitor‑General
13 Solicitor‑General entitled to rights and privileges as a barrister
14 Commonwealth officer appointed as Solicitor‑General
16 Pension of Solicitor‑General
16A Payment to Solicitor‑General in lieu of long leave
17 Delegation by Attorney‑General
18 References in laws to Solicitor‑General
19 Regulations
Notes
An Act relating to the Law Officers of the Commonwealth
This Act may be cited as the Law Officers Act 1964.
This Act shall come into operation on the day on which it receives the Royal Assent.
(1) In this Act, unless the contrary intention appears, Solicitor‑General means a person holding office as Solicitor‑General of the Commonwealth in pursuance of this Act.
(2) In sections 7, 8, 12, 13, 15 and 17, Solicitor‑General includes a person acting in the office of Solicitor‑General of the Commonwealth in pursuance of this Act.
There shall be a Solicitor‑General of the Commonwealth, who shall be the second Law Officer of the Commonwealth.
6 Appointment of Solicitor‑General
(1) A person appointed as Solicitor‑General shall be appointed by the Governor‑General for such period, not exceeding 7 years, as the Governor‑General determines, but is eligible for re‑appointment.
(2) A person is not eligible for appointment as Solicitor‑General unless he or she is or has been a barrister or solicitor of the High Court or of the Supreme Court of a State of not less than 5 years’ standing.
(3) A person appointed as Solicitor‑General holds office, subject to this Act, for the term of his or her appointment, on such terms and conditions as the Governor‑General determines.
7 Remuneration and allowances of Solicitor‑General
(1) The Solicitor‑General shall be paid such remuneration as is determined by the Remuneration Tribunal.
(2) The Solicitor‑General shall be paid such allowances as are prescribed.
(3) This section has effect subject to the Remuneration Tribunal Act 1973 and section 7 of the Judicial and Statutory Officers (Remuneration and Allowances) Act 1984.
The Solicitor‑General may resign the office of Solicitor‑General by giving a signed notice of resignation to the Governor‑General.
9 Solicitor‑General not to undertake other work
(1) Except in the performance of the duties of his or her office or with the consent of the Attorney‑General, the Solicitor‑General shall not engage in the practice of a barrister or solicitor or engage in paid employment.
(2) Where the Attorney‑General gives consent to the engaging by the Solicitor‑General in the practice of a barrister or solicitor, the Attorney‑General is to lay before each House of the Parliament within 15 sitting days of that House after the day on which the consent is given a written statement of the reasons for the giving of the consent.
The Governor‑General shall remove the Solicitor‑General from office if the Solicitor‑General:
(a) except by reason of temporary illness, becomes incapable of performing the duties of his or her office;
(b) is guilty of misbehaviour; or
(c) becomes bankrupt or insolvent, applies to take the benefit of any law for the relief of bankrupt or insolvent debtors, compounds with his or her creditors or makes an assignment of his or her remuneration for their benefit.
(1) The Governor‑General may appoint a person to act as Solicitor‑General:
(a) during a vacancy in the Office of Solicitor‑General whether or not an appointment has previously been made to the office; or
(b) during any period, or during all periods, when the Solicitor‑General is absent from duty or from Australia or is, for any reason, unable to perform the functions of the office.
(2) A person who is appointed to act in the Office of Solicitor‑General must be eligible for appointment to that office.
(3) The Governor‑General may:
(a) determine the terms and conditions of appointment of a person acting as Solicitor‑General; and
(b) at any time terminate such an appointment.
(4) The validity of anything done by or in relation to a person purporting to act under subsection (1) must not be called into question on the ground that:
(a) the occasion for the appointment had not arisen; or
(b) there is a defect or irregularity in or in connection with the appointment; or
(c) the appointment has ceased to have effect; or
(d) the occasion for him or her to act had not arisen or had ceased.
Note: See section 33A of the Acts Interpretation Act 1901 for further provisions relating to acting appointments.
12 Functions of Solicitor‑General
The functions of the Solicitor‑General are:
(a) to act as counsel for:
(i) the Crown in right of the Commonwealth;
(ii) the Commonwealth;
(iii) a person suing or being sued on behalf of the Commonwealth;
(iv) a Minister;
(v) an officer of the Commonwealth;
(vi) a person holding office under an Act or a law of a Territory;
(vii) a body established by an Act or a law of a Territory; or
(viii) any other person or body for whom the Attorney‑General requests him or her to act;
(b) to furnish his or her opinion to the Attorney‑General on questions of law referred to him or her by the Attorney‑General; and
(c) to carry out such other functions ordinarily performed by counsel as the Attorney‑General requests.
13 Solicitor‑General entitled to rights and privileges as a barrister
The Solicitor‑General, in his or her official capacity:
(a) is entitled to practise as a barrister:
(i) in a federal court or in a court of a State or Territory; or
(ii) in a tribunal of the Commonwealth, a State or a Territory; and
(b) is entitled to all the rights and privileges of a barrister in that court or tribunal;
whether or not he or she would, but for this section, be entitled to practise in that court or tribunal.
14 Commonwealth officer appointed as Solicitor‑General
(1) The Judges’ Pensions Act 1968 does not apply in relation to the Solicitor‑General if:
(a) immediately before being appointed as the Solicitor‑General, he or she was:
(i) an eligible employee for the purposes of the Superannuation Act 1976; or
(ii) a member of the superannuation scheme established by deed under the Superannuation Act 1990; or
(iii) an ordinary employer‑sponsored member of PSSAP, within the meaning of the Superannuation Act 2005; and
(b) he or she does not make an election under subsection (2).
(2) The Solicitor‑General may elect to cease to be:
(a) an eligible employee for the purposes of the Superannuation Act 1976; or
(b) a member of the superannuation scheme established by deed under the Superannuation Act 1990; or
(c) an ordinary employer‑sponsored member of PSSAP, within the meaning of the Superannuation Act 2005.
(2A) The election must be made:
(a) within 3 months of the Solicitor‑General’s appointment; and
(b) by notice in writing to the Minister.
(2B) If the Solicitor‑General makes the election:
(a) the Judges’ Pensions Act 1968 applies in relation to him or her and is taken to have so applied immediately after he or she was appointed as the Solicitor‑General; and
(b) he or she is taken to have ceased to be:
(i) an eligible employee for the purposes of the Superannuation Act 1976; or
(ii) a member of the superannuation scheme established by deed under the Superannuation Act 1990; or
(iii) an ordinary employer‑sponsored member of PSSAP, within the meaning of the Superannuation Act 2005;
immediately before being appointed as the Solicitor‑General.
16 Pension of Solicitor‑General
(1AA) This section does not apply in relation to a person appointed as Solicitor‑General after 31 December 1997.
(1) Subject to this section, the provisions of the Judges’ Pensions Act 1968 other than subsection 6(3) (including the provisions relating to widows and children) apply to and in relation to a person who is or has been a Solicitor‑General as though the Solicitor‑General were or had been a Judge and as though his or her service (whether in continuous periods or not) as Solicitor‑General were service as a Judge.
(2) If a person becomes a Judge and, at any time before his or her appointment as a Judge, he or she held office as Solicitor‑General, the period of his or her service as Solicitor‑General shall, for the purposes of sections 6 and 7 of the Judges’ Pensions Act 1968, be added to, and be deemed to be part of, his or her period of service as a Judge and:
(a) if, at the time of so becoming a Judge, he or she is in receipt of a pension by virtue of subsection (1)—that pension ceases to be payable; or
(b) if, at that time, he or she is not so in receipt of a pension—no pension becomes payable by virtue of that subsection by reason of his having held office as Solicitor‑General.
(3) If a person is appointed as Solicitor‑General and, at the time of his or her appointment, he or she is in receipt of a pension under the Judges’ Pensions Act 1968 by virtue of subsection (1), that pension ceases to be payable.
(4) Where:
(a) a person has at any time, whether before or after the commencement of this subsection, served in the office of Solicitor‑General for a period of at least 7 years, whether continuous or not; and
(b) the person ceases to hold that office after that commencement, otherwise than under paragraph 10(b); and
(c) the person is not entitled to payment of a pension under subsection (1);
subsections (5) to (9), inclusive, apply in relation to the person.
(4A) If a person is appointed as Solicitor‑General and, at the time of the appointment, is receiving a pension because of the application of subsection (8), that pension ceases to be payable.
(5) For the purpose of the application of subsections (6), (7) and (8) in relation to the person, a reference to the relevant discounted rate of pension is a reference to whichever is the lesser of:
(a) 0.5% of the appropriate current salary for each completed month of the person’s actual service as Solicitor‑General; or
(b) 60% of the appropriate current salary;
reduced by 2.5% for each whole year between:
(c) in the case of the application of subsection (6)—the date on which the person actually ceased to hold office as Solicitor‑General and the date that the Attorney‑General certified under that subsection was the date on which the person became permanently disabled or permanently infirm;
(d) in the case of the application of subsection (7)—the date on which the person actually ceased to hold office as Solicitor‑General and the date on which the person died; or
(e) in the case of the application of subsection (8)—the date on which the person actually ceased to hold office as Solicitor‑General and the date on which the person attained the age of 60 years.
(6) If the Attorney‑General certifies that the person became, at a particular date before attaining the age of 60 years, permanently disabled or permanently infirm, the relevant provisions of the Judges’ Pensions Act 1968 apply in relation to the person as if the person had held office as Solicitor‑General at that date and the certificate were given under subsection 6(2) of that Act, but the rate of the pension payable to the person is the relevant discounted rate of pension.
(7) If the person dies before attaining the age of 60 years and was not entitled to a pension under subsection (6) immediately before his or her death, the relevant provisions of the Judges’ Pensions Act 1968 apply in relation to the person as if the person had held office as Solicitor‑General at the time of his or her death, but a reference in any of those provisions as so applying to the relevant pension is a reference to pension at a rate equal to the relevant discounted rate of pension.
(8) If the person attains the age of 60 years and was not entitled to a pension under subsection (6) immediately before attaining that age, the relevant provisions of the Judges’ Pensions Act 1968 apply in relation to the person as if the person’s period of appointment as Solicitor‑General had expired upon his or her attaining that age after having served for not less than 10 years, but the rate of the pension payable to the person is the relevant discounted rate of pension.
(9) The person may, at any time before attaining the age of 60 years, apply to the Attorney‑General for a certificate under subsection (6) and, upon receipt of the application, the Attorney‑General shall:
(a) if satisfied that the person became, at a particular time before attaining the age of 60 years, permanently disabled or permanently infirm—so certify under subsection (6); or
(b) otherwise—refuse to certify under that subsection.
(10) In the application of the relevant provisions of the Judges’ Pensions Act 1968 by virtue of this section, a reference in section 6 of that Act to a Judge retiring includes a reference to a Solicitor‑General not being re‑appointed.
(11) An application may be made to the Administrative Appeals Tribunal for review of a refusal of the Attorney‑General, on application under subsection (9), to give a certificate under subsection (6).
(11A) For the purposes of this section, the appropriate current salary in relation to a person at a particular time (the calculation time) is calculated as follows:
For the purposes of the calculation:
Judge’s 1997 salary means salary at the rate that was payable on 31 December 1997 to a Judge (other than the Chief Justice) of the Federal Court of Australia.
Judge’s salary at the calculation time means salary at the rate that is payable at the calculation time to a Judge (other than the Chief Justice) of the Federal Court of Australia.
Solicitor‑General’s 1997 salary means salary at the rate that was payable on 31 December 1997 to the Solicitor‑General.
(12) In this section:
Judge means a Judge within the meaning of the Judges’ Pensions Act 1968.
relevant provisions of the Judges’ Pensions Act 1968 means the provisions of that Act referred to in subsection (1).
(13) Pensions under or by virtue of this section are payable out of the Consolidated Revenue Fund, which is appropriated accordingly.
16A Payment to Solicitor‑General in lieu of long leave
(1AA) This section does not apply in relation to a person appointed as Solicitor‑General after 31 December 1997.
(1) On:
(a) the retirement of the Solicitor‑General after having completed a period of service of 10 years or more; or
(b) the death of the Solicitor‑General, whether or not he or she has completed a period of service of 10 years;
an amount calculated in accordance with subsection (2) is payable in accordance with this section.
(2) The amount payable under subsection (1) in respect of the Solicitor‑General is an amount equal to his or her salary as Solicitor‑General for:
(a) a period of 52 weeks; or
(b) a period of weeks calculated at the rate of 5.2 weeks for each completed year of his or her qualifying service;
whichever is the lesser period.
(3) An amount payable under paragraph (1)(a) is payable to the Solicitor‑General.
(4) An amount payable under paragraph (1)(b) is payable to:
(a) where the Solicitor‑General leaves a person or persons determined by the Attorney‑General in writing to be a dependant or dependants—the person or persons; or
(b) in any other case—the legal personal representative of the Solicitor‑General.
(5) An application may be made to the Administrative Appeals Tribunal for review of a refusal of the Attorney‑General to determine a person to be a dependant for the purposes of paragraph (4)(a).
(6) Where an amount is payable under paragraph (4)(a) to 2 or more dependants of the Solicitor‑General, the Attorney‑General may give a direction in writing as to the distribution of the amount between or among those dependants.
(7) Where an amount is payable under this section to a person who is under a legal disability, the Attorney‑General may, instead of authorizing payment of the amount to the person, authorize payment of the amount to such trustee or trustees as the Attorney‑General appoints to be held by the trustee or trustees upon such trusts for the benefit of the person as the Attorney‑General directs in writing.
(8) For the purposes of this section, a period of service does not include any period in respect of which the Solicitor‑General has exercised a right of election under subsection 10(4) of the Long Service Leave (Commonwealth Employees) Act 1976.
(9) Subject to subsection (8), the period of service of the Solicitor‑General includes any prior period (whether continuous or not) during which he or she acted as Solicitor‑General under section 11.
(10) An entitlement to payment under this section commences to accrue from the commencement of the period of service in respect of which the amount of the entitlement is calculated.
(11) In this section, unless the contrary intention appears:
period of service means a period (whether continuous or not) of service as Solicitor‑General.
qualifying service, in relation to the Solicitor‑General, means his or her period of service, other than any period of service in respect of which he or she has taken long leave or has been paid in lieu of such leave.
retirement, in relation to the Solicitor‑General, means ceasing to be the Solicitor‑General otherwise than by death or by removal from office under section 10.
salary as Solicitor‑General means salary at a weekly rate equal to one fifty‑second of the annual rate of salary that was payable to the Solicitor‑General immediately before his or her retirement or death.
17 Delegation by Attorney‑General
(1) The Attorney‑General may, either generally or otherwise as provided by the instrument of delegation, by writing under his or her hand, delegate to the Solicitor‑General all or any of his or her powers and functions under all or any of the laws of the Commonwealth or of a Territory, except this power of delegation.
(2) The Attorney‑General may, either generally or otherwise as provided by the instrument of delegation, by writing under his or her hand, delegate to the Secretary to the Attorney‑General’s Department or to the person for the time being holding or performing the duties of the office specified in the instrument of delegation all or any of his or her powers and functions under all or any of the laws of the Commonwealth or of a Territory, except this power of delegation.
(3) A power or function delegated under either subsection (1) or subsection (2) may be exercised or performed by the delegate in accordance with the instrument of delegation.
(4) A delegation may be given under subsection (1) or subsection (2) notwithstanding that a delegation is in force under the other of those subsections.
(5) A delegation under this section is revocable at will and does not prevent the exercise of a power or the performance of a function by the Attorney‑General.
(6) This section does not apply to the powers and functions of the Attorney‑General under the Telecommunications (Interception and Access) Act 1979.
18 References in laws to Solicitor‑General
A reference in a law of the Commonwealth other than this Act, or in a law of a Territory, as in force at the commencement of this Act, to the Solicitor‑General of the Commonwealth or to the Solicitor‑General shall be read as a reference to the Secretary to the Attorney‑General’s Department.
The Governor‑General may make regulations, not inconsistent with this Act, prescribing matters:
(a) required or permitted by this Act to be prescribed; or
(b) necessary or convenient to be prescribed for carrying out or giving effect to this Act.
Notes to the Law Officers Act 1964
Note 1
The Law Officers Act 1964 as shown in this compilation comprises Act No. 91, 1964 amended as indicated in the Tables below.
Table of Acts
Act | Number | Date | Date of commencement | Application, saving or transitional provisions |
Law Officers Act 1964 | 91, 1964 | 5 Nov 1964 | 5 Nov 1964 |
|
Law Officers Act 1968 | 152, 1968 | 10 Dec 1968 | 10 Dec 1968 | — |
Statute Law Revision Act 1973 | 216, 1973 | 19 Dec 1973 | 31 Dec 1973 | Ss. 9(1) and 10 |
Statute Law (Miscellaneous Provisions) Act (No. 2) 1983 | 91, 1983 | 22 Nov 1983 | Ss. 3 and 4 (a) | Ss. 2(14) and 6(1), (3) |
Statute Law (Miscellaneous Provisions) Act (No. 1) 1985 | 65, 1985 | 5 June 1985 | S. 3: 3 July 1985 (b) | — |
Law and Justice Legislation Amendment Act 1988 | 120, 1988 | 14 Dec 1988 | Part XIV (ss. 42, 43): Royal Assent (c) | — |
Law and Justice Legislation Amendment Act 1991 | 136, 1991 | 12 Sept 1991 | Schedule: 10 Oct 1991 (d) | — |
Law and Justice Legislation Amendment Act 1992 | 22, 1992 | 13 Apr 1992 | S. 3: Royal Assent (e) | — |
Superannuation Legislation (Consequential Amendments and Transitional Provisions) Act 1992 | 94, 1992 | 30 June 1992 | S. 3: 1 July 1990 | — |
Law and Justice Legislation Amendment Act (No. 2) 1994 | 141, 1994 | 28 Nov 1994 | S. 3 (item 11) and s. 4 (items | S. 5 |
Law Officers Amendment Act 1998 | 39, 1998 | 4 June 1998 | 4 June 1998 | — |
Superannuation Legislation (Commonwealth Employment) Repeal and Amendment Act (No. 1) 2003 | 64, 2003 | 30 June 2003 | 1 July 2003 | — |
Law and Justice Legislation Amendment Act 2004 | 62, 2004 | 26 May 2004 | Schedule 1 (items 44, 45): 27 May 2004 | — |
Telecommunications (Interception) Amendment Act 2006 | 40, 2006 | 3 May 2006 | Schedule 1 (item 21): 13 June 2006 (see F2006L01623) | — |
Superannuation Legislation Amendment (Trustee Board and Other Measures) (Consequential Amendments) Act 2008 | 26, 2008 | 23 June 2008 | Schedule 1 (items 82–85): Royal Assent | — |
(a) The Law Officers Act 1964 was amended by sections 3 and 4 only of the Statute Law (Miscellaneous Provisions) Act (No. 2) 1983, subsections 2(1) and (9) of which provide as follows:
(1) Subject to this section, this Act shall come into operation on the twenty‑eighth day after the day on which it receives the Royal Assent.
(9) Section 16A of the Law Officers Act 1964, as inserted by this Act, shall come into operation on the day on which this Act receives the Royal Assent.
(b) The Law Officers Act 1964 was amended by section 3 only of the Statute Law (Miscellaneous Provisions) Act (No. 1) 1985, subsection 2(1) of which provides as follows:
(1) Subject to this section, this Act shall come into operation on the twenty‑eighth day after the day on which it receives the Royal Assent.
(c) The Law Officers Act 1964 was amended by Part XIV (sections 42 and 43) only of the Law and Justice Legislation Amendment Act 1988, subsection 2(1) of which provides as follows:
(1) Subject to this section, this Act commences on the day on which it receives the Royal Assent.
(d) The Law Officers Act 1964 was amended by the Schedule only of the Law and Justice Legislation Amendment Act 1991, subsection 2(1) of which provides as follows:
(1) Subject to this section, this Act commences on the 28th day after the day on which it receives the Royal Assent.
(e) The Law Officers Act 1964 was amended by section 3 only of the Law and Justice Legislation Amendment Act 1992, subsection 2(1) of which provides as follows:
(1) Subject to this section, this Act commences on the day on which it receives the Royal Assent.
(f) The Law Officers Act 1964 was amended by section 3 (item 11) and section 4 (items 151‑173) only of the Law and Justice Legislation Amendment Act (No. 2) 1994, subsection 2(1) of which provides as follows:
(1) Subject to this section, this Act commences on the day on which it receives the Royal Assent.
Table of Amendments
ad. = added or inserted am. = amended rep. = repealed rs. = repealed and substituted | |
Provision affected | How affected |
S. 3.................... | rep. No. 216, 1973 |
S. 4.................... | am. No. 91, 1983 |
S. 6.................... | am. No. 91, 1983; No. 141, 1994 |
S. 7.................... | rs. No. 65, 1985 |
| am. No. 141, 1994 |
S. 8.................... | rs. No. 141, 1994 |
S. 9.................... | am. No. 22, 1992; No. 141, 1994 |
S. 10................... | am. No. 141, 1994 |
S. 11................... | am. No. 91, 1983; No. 141, 1994 |
| rs. No. 141, 1994 |
S. 12................... | am. No. 216, 1973; No. 141, 1994 |
S. 13................... | am. No. 216, 1973; No. 141, 1994 |
| rs. No. 62, 2004 |
S. 14................... | am. No. 216, 1973; No. 91, 1983 |
| rs. No. 65, 1985 |
| am. No. 94, 1992; No. 64, 2003; No. 26, 2008 |
S. 15................... | rep. No. 216, 1973 |
S. 16................... | am. No. 152, 1968; No. 91, 1983; No. 65, 1985; No. 120,1988; No. 136, 1991; No. 141, 1994; No. 39, 1998 |
S. 16A.................. | ad. No. 91, 1983 |
| am. No. 141, 1994; No. 39, 1998 |
S. 17................... | am. No. 216, 1973; No. 91, 1983; No. 141, 1994; No. 62, 2004; No. 40, 2006 |
S. 18................... | am. No. 216, 1973 |
S. 19................... | ad. No. 65, 1985 |