Commonwealth of Australia Explanatory Memoranda

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LAW OFFICERS LEGISLATION AMENDMENT BILL 2008

                             2008




THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA




             HOUSE OF REPRESENTATIVES




 LAW OFFICERS LEGISLATION AMENDMENT BILL 2008




            EXPLANATORY MEMORANDUM




       (Circulated by authority of the Attorney-General,
           the Honourable Robert McClelland MP)
           LAW OFFICERS LEGISLATION AMENDMENT BILL 2008


OUTLINE
This Bill amends the Long Service Leave (Commonwealth Employees) Act 1976 and the
Law Officers Act 1964 to provide holders of the office of the Solicitor-General with an
entitlement to long service leave.

Historically, section 16A of the Law Officers Act set out the entitlement of the Solicitor-
General to long service leave (or pro-rata payment in lieu of that leave). To avoid
conflict with section 16A, subsection 10(3) of the Long Service Leave Act expressly
excludes the Solicitor-General from the operation of that Act.

The Law Officers Amendment Act 1998 amended the Law Officers Act to vary the terms
and conditions of service for those holding the office of Solicitor-General after 31
December 1997. The purpose was to break the nexus between the terms and conditions
of the Solicitor-General and those applying to a Judge, and to make those of the Solicitor-
General similar to those of senior members of the Australian Public Service. The
Solicitor-General's remuneration thereafter was to be determined by the Remuneration
Tribunal. Section 16A was amended by the Law Officers Amendment Act so that it
removed 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 appointed after 31 December
1997. Subsection 10(3) of the Long Service Leave Act, however, was not amended to
remove the reference excluding the Solicitor-General from its operation.
While Solicitors-General appointed after 31 December 1997 receive superannuation and
leave entitlements similar to those applying to senior members of the Australian Public
Service, the Law Officers Amendment Act did not address these proposals in detail and
the Long Service Leave Act was not amended to extend coverage to the Solicitor-
General.
The Bill inserts a new section 7A in the Law Officers Act to make it clear that that Act
operates subject to the Long Service Leave Act, and amends subsections 10(3) and 10(4)
of the Long Service Leave Act, in so far as they refer to the Solicitor-General, to enable
Solicitors-General to access long service leave entitlements under the Act.

FINANCIAL IMPACT STATEMENT
The amendments are not expected to have any significant financial impact.
NOTES ON CLAUSES

Clause 1: Short title

1.   Clause 1 is a formal provision specifying the short title of the Bill.

Clause 2: Commencement

2.   All sections of the Act will commence on the day after which it receives Royal
Assent.

Clause 3: Schedule(s)

3.  Clause 3 provides that each Act that is specified in a Schedule to the Bill is
amended or repealed as set out in the applicable items in the Schedule.

Schedule 1 ­ Amendments

Law Officers Act 1964

Item 1: Section 7A

4.     Item 1 inserts new section 7A of the Law Officers Act.
5.      Section 6 of the Law Officers Act provides that the Governor-General appoints
the Solicitor-General and may determine the terms and conditions attached to the office
of Solicitor-General. Section 7 provides that the Solicitor-General's remuneration and
allowances are determined by the Remuneration Tribunal.

6.     Proposed new section 7A makes clear that sections 6 and 7 have effect subject to
the Long Service Leave Act.

Item 2: Section 16A

5.     Item 2 repeals section 16A of the Law Officers Act.

6.      Section 16A was amended by the Law Officers Amendment Act so that it
removed 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 appointed after 31 December
1997. In substance, that amendment was intended to break the nexus between
entitlements of Judges and entitlements of the Solicitor-General.

7.     There is no longer any person to whom section 16A applies. It is therefore a spent
provision and may be repealed.




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Long Service Leave (Commonwealth Employees) Act 1976

Item 3: Subsections 10(3) and (4)

Section 10 of the Long Service Leave Act in general terms provides that one of the basic
qualifications for long service leave is that the person is (or was) `employed in
Government Service'. Subsection 10(3) of the Act expressly excludes the Solicitor-
General from the meaning of `employed in Government Service' (subject to
considerations listed in subsection 10(4)). It is proposed that the holder of the office of
Solicitor-General be provided with an entitlement to long service leave by amending
subsections 10(3) and (4) to include service in the office of Solicitor-General in the
meaning of `employed in Government Service' in subsections 10(3) and 10(4).

Item 4: Subsection 10(4)

The proposed amendment of subsection 10(4) removes references to the Solicitor-
General from transitional provisions entitling Judges to long service leave in respect of
their entitlements under the Judges Pension Act 1968.

Item 5: Application

8.      Item 5 adds an application provision that makes clear that the amendment applies
to any period during which the person holds office as the Solicitor-General if the person
was appointed as Solicitor-General after 31 December 1997, whether before of after the
commencement of Schedule 1.




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