An Act to establish the Australian Law Reform Commission, and for related purposes
Part 1—Preliminary
1 Short title
This Act may be cited as the Australian Law Reform Commission Act 1996.
2 Commencement
(1) Subject to subsection (2), this Act commences on a day to be fixed by Proclamation.
(2) If this Act does not commence under subsection (1) within the period of 6 months beginning on the day on which this Act receives the Royal Assent, it commences on the first day after the end of that period.
3 Definitions
In this Act, unless the contrary intention appears:
Commission means the Australian Law Reform Commission.
Commonwealth laws means:
(a) laws (including Territory laws) made by, or by the authority of, the Parliament; and
(b) any other laws (including Territory laws) that the Parliament has power to repeal or amend.
judicial office means:
(a) an office of a judge, magistrate or justice of a federal court or a court of a State or Territory; or
(b) an office whose holder has, under an Act of the Commonwealth, a State or a Territory, the same status as a judge, magistrate or justice of a federal court or a court of a State or Territory.
laws includes common law and equity rules.
management advisory committee means the management advisory committee established under section 27.
management advisory committee member means a member of the management advisory committee.
member means a member of the Commission, and includes the President.
Parliamentary Committee means a Committee of either House, or of both Houses, of the Parliament.
President means the President of the Commission, and includes any person for the time being acting in the office of President.
reference means a reference to the Commission by the Attorney‑General under this Act.
4 Extension to external Territories
This Act extends to the external Territories.
Part 2—Establishment and constitution of the Commission
5 Establishment of the Commission
(1) This section establishes a commission called the Australian Law Reform Commission.
(2) For the purposes of the finance law (within the meaning of the Public Governance, Performance and Accountability Act 2013):
(a) the Commission is a listed entity; and
(b) the President is the accountable authority of the Commission; and
(c) the following persons are officials of the Commission:
(i) the President;
(ii) the other members;
(iii) the staff of the Commission referred to in subsection 43(1); and
(d) the purposes of the Commission include the functions of the Commission referred to in section 21.
6 Constitution of the Commission
(1) The Commission consists of:
(a) a President; and
(b) up to 6 other members.
(2) The performance of the Commission’s functions, and the exercise of its powers, are not affected merely because of 1 or more vacancies in its membership.
(3) Subject to paragraph (1)(b), the Attorney‑General may, from time to time, appoint such other part‑time members of the Commission as the Attorney‑General considers necessary to enable the Commission to perform its functions.
7 Appointment of members
(1) The members are to be appointed by:
(a) for a full‑time member—the Governor‑General; and
(b) for a part‑time member—the Attorney‑General, by written instrument.
(2) A person must not be appointed as a member unless he or she:
(a) is the holder of a judicial office; or
(b) is, and has been for at least 5 years, a legal practitioner of the High Court, or of the Supreme Court of a State or Territory; or
(c) is a graduate in law of a university, and has experience as a member of the academic staff of a tertiary educational institution; or
(d) is, in the opinion of the Governor‑General or the Attorney‑General (as the case may be), suitable for appointment because of the person’s special qualifications, training or experience.
8 Full‑time and part‑time appointments
(1) The President must be appointed as a full‑time member.
(2) The other members may be appointed either as full‑time or part‑time members.
(3) If the President is or becomes the holder of a judicial office, the President may carry out any of the duties of that office.
9 Durations, terms and conditions of appointments
(1) Subject to sections 17 and 18, a member holds office for the term (of at least 6 months but not longer than 5 years) specified in his or her appointment, but is eligible for re‑appointment.
(2) A member’s appointment is subject to the terms and conditions (if any) set out in it.
10 Appointment and service not to affect a tenure or rights of judicial office holders
(1) If a person who holds a judicial office is appointed as a member, the appointment does not affect, and is taken never to have affected:
(a) the person’s tenure of that office; or
(b) the person’s rights or privileges as the holder of that office.
(2) If a person who holds a judicial office serves as a member, that service does not affect, and is taken never to have affected:
(a) the person’s tenure of that office; or
(b) the person’s rights or privileges as the holder of that office.
(3) Any service as a member by the holder of a judicial office is taken for all purposes to be, or to have been, service as the holder of that office.
(4) For the purposes of this section, a person’s rights and privileges as the holder of a judicial office are taken to include his or her rank, title, status, precedence, salary and allowances, as the holder of that office.
11 Arrangements for appointment of State and Territory judges
(1) For the purposes of appointing a judge, magistrate or justice of a court of a State as a member, the Governor‑General or the Attorney‑General (as the case may be) may enter into any necessary arrangement with the Governor of the State.
(2) For the purposes of appointing a judge, magistrate or justice of a court of the Australian Capital Territory or of the Northern Territory as a member, the Governor‑General or the Attorney‑General (as the case may be) may enter into any necessary arrangement with the Chief Minister of the Territory.
(3) An arrangement may provide, among other things, for the Commonwealth to reimburse the State or Territory with respect to the services of the person to be appointed.
13 Acting appointment: President
(1) The Attorney‑General may, by written instrument, appoint a member or a person who is qualified to be a member to act as President:
(a) during a vacancy in the office of President, whether or not an appointment has previously been made to the office; or
(b) during any period, or during all periods, when the President is absent from duty or from Australia or is, for any other 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) The appointment may be expressed to have effect:
(a) for a period specified in the instrument of appointment; or
(b) in the circumstances specified in the instrument of appointment (including whenever the President is on leave, for example).
Note: For rules that apply to acting appointments, see section 33A of the Acts Interpretation Act 1901.
(3) If the Attorney‑General appoints a person who is not a member, the person is taken to be a member for the period of the appointment.
14 Acting appointments: full‑time members
The Attorney‑General may appoint a part‑time member to act as a full‑time member (other than the President) during any period, or during all periods, when the full‑time member 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.
15 Directions to perform duties on a full‑time basis
(1) The Attorney‑General may, in writing, direct a part‑time member to perform the duties of his or her office on a full‑time basis in the circumstances, and for the period, specified in the direction.
(2) While a part‑time member performs duties on a full‑time basis in accordance with a direction, the member is to be paid the same remuneration and allowances as are payable to a full‑time member.
16 Remuneration and allowances
(1) A member who is not the holder of a judicial office is to be paid such remuneration as the Remuneration Tribunal determines.
(2) The member is to be paid the prescribed allowances.
(3) This section has effect subject to the Remuneration Tribunal
Act 1973.
17 Termination of full‑time appointments
(1) The Governor‑General may terminate a full‑time member’s appointment for misbehaviour, or physical or mental incapacity.
(2) The Governor‑General must terminate a full‑time member’s appointment if the member:
(a) becomes bankrupt; or
(b) applies to take the benefit of any law for the relief of bankrupt or insolvent debtors; or
(c) compounds with his or her creditors; or
(d) makes an assignment of his or her remuneration for the benefit of his or her creditors.
(3) If a full‑time member engages in paid employment outside the duties of the member’s office without the Attorney‑General’s approval, the Governor‑General must terminate the member’s appointment.
(4) Subsections (1), (2) and (3) do not apply to a full‑time member who holds a judicial office.
(5) If a full‑time member who is the holder of a judicial office stops holding that office, the Governor‑General may terminate the member’s appointment.
17A Termination of part‑time appointments
(1) The Attorney‑General may terminate a part‑time member’s appointment for misbehaviour, or physical or mental incapacity.
(2) The Attorney‑General must terminate a part‑time member’s appointment if the member:
(a) becomes bankrupt; or
(b) applies to take the benefit of any law for the relief of bankrupt or insolvent debtors; or
(c) compounds with his or her creditors; or
(d) makes an assignment of his or her remuneration for the benefit of his or her creditors.
(3) Subsections (1) and (2) do not apply to a part‑time member who holds a judicial office.
(4) If a part‑time member who is the holder of a judicial office stops holding that office, the Attorney‑General may terminate the member’s appointment.
18 Resignation
A member may resign from the office of member by signing a written resignation and delivering it to:
(a) if the member is a full‑time member—the Governor‑General; or
(b) if the member is a part‑time member—the Attorney‑General.
19 Leave of absence for full‑time members
(1) A full‑time member has the recreation leave entitlements determined by the Remuneration Tribunal.
(2) The Attorney‑General may grant the President leave of absence (except recreation leave) on such terms and conditions as to remuneration or otherwise as the Attorney‑General determines.
(3) The President may grant a full‑time member leave of absence (except recreation leave) on such terms and conditions as to remuneration or otherwise as the President determines.
(4) This section has effect subject to the Remuneration Tribunal
Act 1973.
Part 3—The Commission’s functions, powers and reports
20 Reference to the Commission
(1) The Attorney‑General may refer a matter to the Commission, either at the Commission’s suggestion or on his or her own initiative.
(2) The Attorney‑General may alter the terms of a reference.
(3) The Attorney‑General may give the Commission directions about the order in which it is to deal with references.
21 The Commission’s functions
(1) The Commission has the following functions in relation to matters referred to it by the Attorney‑General:
(a) to review Commonwealth laws relevant to those matters for the purposes of systematically developing and reforming the law, particularly by:
(i) bringing the law into line with current conditions and ensuring that it meets current needs; and
(ii) removing defects in the law; and
(iii) simplifying the law; and
(iv) adopting new or more effective methods for administering the law and dispensing justice; and
(v) providing improved access to justice;
(b) to consider proposals for making or consolidating Commonwealth laws about those matters;
(c) to consider proposals for the repeal of obsolete or unnecessary laws about those matters;
(d) to consider proposals for uniformity between State and Territory laws about those matters;
(e) to consider proposals for complementary Commonwealth, State and Territory laws about those matters.
(2) It is a function of the Commission to report to the Attorney‑General on the results of any review or consideration it carries out under subsection (1), and to include in the report any recommendations it wants to make.
22 Interim reports
(1) The Commission may, before making its report on a reference, make an interim report to the Attorney‑General on its work on the reference.
(2) The Attorney‑General may, before the Commission makes its report on a reference, direct it to make an interim report to the Attorney‑General on its work on the reference.
23 Reports to be tabled
The Attorney‑General must cause each report and interim report of the Commission on a matter that is the subject of a reference to be tabled in each House of the Parliament within 15 sitting days of that House after the Attorney‑General receives it.
24 How the Commission is to perform its functions
(1) In performing its functions, the Commission must aim at ensuring that the laws, proposals and recommendations it reviews, considers or makes:
(a) do not trespass unduly on personal rights and liberties or make the rights and liberties of citizens unduly dependent on administrative, rather than judicial, decisions; and
(b) are, as far as practicable, consistent with Australia’s international obligations that are relevant to the matter.
(2) The Commission, when formulating recommendations, must have regard to the effect that the recommendations may have on:
(a) the costs of getting access to, and dispensing, justice; and
(b) persons and businesses who would be affected by the recommendations (including the economic effect, for example).
25 The Commission’s powers
The Commission has power to do everything necessary or convenient to be done for, or in connection with, the performance of its functions.
26 Commission to comply with certain requirements and directions
(1) If a House of the Parliament, or a Parliamentary Committee, requires the Commission to give it any information about the performance of the Commission’s functions, or the exercise of its powers, the Commission must comply with the requirement.
(2) The information that may be required under subsection (1) includes information about the Commission’s expenditure or proposed expenditure.
(2A) In the capacity of CEO of the Commission, the President must act in accordance with any policies determined, and comply with any directions given, in writing by the Attorney‑General.
Note: Section 19 of the Public Service Act 1999 has the effect that the President is not subject to direction by any Minister in relation to the exercise of powers by the President under section 15 or Division 1 or 2 of Part 4 of that Act in relation to particular individuals.
(3) The Commission must comply with a direction of the Attorney‑General under subsection 20(3) or 22(2).
Part 4—Management, meetings and staff
Division 1—Management structure
27 Management advisory committee
(1) The Attorney‑General may, by written instrument, establish a committee (the management advisory committee) to advise the President on matters that are relevant to the proper discharge of the Commission’s functions (including in relation to strategic planning, for example).
(2) However, the management advisory committee must not attempt to compromise the independence or impartiality of the Commission in any way.
(3) The Attorney‑General is to appoint the members of the management advisory committee.
(4) The Attorney‑General may dissolve the management advisory committee at any time.
(5) The President may decide any matters about the management advisory committee that are not provided for in this Act.
34 President to be CEO
The President is the Chief Executive Officer of the Commission.
35 Delegations by the President
The President may, in writing, delegate all or any of the President’s powers to a member of the Commission, or to an employee of the Commission.
Division 2—Meetings and proceedings of the Commission
36 Meetings of the Commission
(1) The President must convene:
(a) at least 2 meetings each financial year; and
(b) any other meetings that the President thinks necessary for the efficient performance of the Commission’s functions.
(2) The President must convene a meeting on receiving a written request to do so signed by a majority of the other members.
(3) The President must preside at all meetings at which he or she is present.
(5) If the President is not present at a meeting, the members who are present must elect one of their number to preside.
(6) A quorum is constituted by a majority of the members of the Commission.
(7) Questions arising at a meeting must be determined by a majority of the votes of the members present and voting.
(8) The person presiding at a meeting has a deliberative vote and, if there is an equality of votes, also has a casting vote.
37 Conduct of meetings
The Commission may regulate proceedings at its meetings as it thinks fit. It must keep minutes of those proceedings.
38 Commission may inform itself in any way
For the purposes of reviewing or considering anything that is the subject of a reference, the Commission may inform itself in any way it thinks fit.
Division 4—Staff and consultants
43 Staff of the Commission
(1) The staff of the Commission are to be persons engaged under the Public Service Act 1999.
(2) For the purposes of that Act:
(a) the President and the staff together constitute a Statutory Agency; and
(b) the President is the Head of that Statutory Agency.
44 Commission may engage consultants
The President may engage persons with suitable qualifications and experience as consultants to the Commission.
Part 5—Finance
45 Law Reform Special Account
(1) The Law Reform Special Account is established by this section.
(2) The Law Reform Special Account is a special account for the purposes of the Public Governance, Performance and Accountability Act 2013.
(3) The following amounts must be credited to the Law Reform Special Account:
(a) amounts appropriated by the Parliament for the purposes of the Account;
(b) amounts received by the Commission in relation to performing any of its functions, or exercising any of its powers, under this Act;
(c) amounts of any gifts given, or bequests made, for the purposes of the Account.
Note: An Appropriation Act provides for amounts to be credited to a special account if any of the purposes of the special account is a purpose that is covered by an item in the Appropriation Act.
(4) The Law Reform Special Account may be debited for the following purposes:
(a) to pay the costs, expenses and other obligations incurred by the Commonwealth in the performance of the Commission’s functions;
(b) to pay any remuneration and allowances payable to a person under this Act;
(c) to pay the expenses of administering the Account;
(d) to pay any amount that is required or permitted to be repaid;
(e) to reduce the balance of the Account (and, therefore, the available appropriation for the Account) without making a real or notional payment.
Note: See section 80 of the Public Governance, Performance and Accountability Act 2013 (which deals with special accounts).
Part 6—Miscellaneous
51 Regulations
The Governor‑General may make regulations 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.