An Act relating to the Law Officers of the Commonwealth
1 Short title
This Act may be cited as the Law Officers Act 1964.
2 Commencement
This Act shall come into operation on the day on which it receives the Royal Assent.
4 Interpretation
(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.
5 Office of Solicitor‑General
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.
7A Effect of sections 6 and 7—long service leave
Sections 6 and 7 have effect subject to the Long Service Leave (Commonwealth Employees) Act 1976.
8 Resignation
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.
10 Vacation of office
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.
11 Acting Solicitor‑General
(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.
Note: For rules that apply to acting appointments, see section 33A of the Acts Interpretation Act 1901.
(2) A person who is appointed to act in the Office of Solicitor‑General must be eligible for appointment to that office.
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 4(2) (including the provisions relating to spouses 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 or her 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.
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 of 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 following:
(a) the powers and functions of the Attorney‑General under the Australian Security Intelligence Organisation Act 1979 (other than under subsections 34JE(3) and (4));
(b) 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 of the Attorney‑General’s Department.
19 Regulations
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.