Law Officers Act 1964

The Law Officers Act 1964 directly affects a narrow but constitutionally and practically significant class of persons. First, it governs every person who holds or has held the office of Solicitor-General of the Commonwealth since the Act’s commencement. This includes both substantive appointees and persons appointed to act under s 11.

Second, the Act affects the Governor-General, who is the formal appointing authority (s 6), the authority who must remove the Solicitor-General in the circumstances listed in s 10, and the authority who makes acting appointments (s 11). In practice these powers are exercised on ministerial advice, but the statute places the legal acts in the Governor-General’s hands.

Third, the Attorney-General is both a beneficiary and a duty-holder under the Act. The Attorney-General receives the Solicitor-General’s opinions (s 12(b)), may request the Solicitor-General to act for additional persons or bodies (s 12(a)(viii)), may consent to the Solicitor-General undertaking outside practice (s 9(1)) and must table statements of reasons for such consent (s 9(2)). The Attorney-General is also the repository of certification functions concerning permanent disability or infirmity (s 16(6), (9)), may delegate powers to the Solicitor-General or the Departmental Secretary (s 17), and is the respondent to Administrative Review Tribunal applications arising from refusal of a disability certificate (s 16(11)).

Fourth, a range of Commonwealth entities and individuals are entitled to the Solicitor-General’s services as counsel. These include the Crown in right of the Commonwealth, the Commonwealth itself, Ministers, Commonwealth officers, persons suing or being sued on behalf of the Commonwealth, office-holders under Commonwealth or Territory legislation, and statutory bodies (s 12(a)).

Fifth, the Act affects the superannuation and pension administrators who must apply the Judges’ Pensions Act 1968, the Superannuation Act 1976, the Superannuation Act 1990 and the Superannuation Act 2005 in the manner modified by ss 14 and 16. The Consolidated Revenue Fund is directly appropriated for the payment of pensions arising under s 16(13).

Sixth, the Parliament is affected by the mandatory tabling obligation in s 9(2) and by the fact that the Act itself can only be amended by further legislation.

Finally, the Administrative Review Tribunal is given jurisdiction to review refusals by the Attorney-General to issue a disability certificate under s 16(6) (s 16(11)). Thus the Act reaches beyond the executive to the merits-review machinery of the Commonwealth.

The Solicitor-General’s duties are exhaustively stated in s 12. The primary duty is to act as counsel for the enumerated Commonwealth parties and for any additional party or body at the request of the Attorney-General. This is not a mere permission; it is expressed as one of the “functions of the Solicitor-General.” The second function is to furnish opinions on questions of law referred by the Attorney-General. The third is open-ended: to carry out such other functions ordinarily performed by counsel as the Attorney-General requests. These functions are performed in the Solicitor-General’s official capacity and attract the rights and privileges of a barrister in every Australian court and tribunal (s 13), even if the Solicitor-General would not otherwise be entitled to appear in a particular jurisdiction.

The Solicitor-General also has a negative duty under s 9(1): except when performing official duties or with the Attorney-General’s consent, the Solicitor-General “shall not engage in the practice of a barrister or solicitor or engage in paid employment.” The consent power is conditioned by a transparency obligation: the Attorney-General must lay before each House a statement of reasons within 15 sitting days.

Rights conferred on the Solicitor-General include the right to receive Remuneration Tribunal-determined remuneration and prescribed allowances (s 7), the right to resign by signed notice (s 8), the right (subject to eligibility) to be considered for re-appointment (s 6(1)), and the right to long-service leave under the Long Service Leave (Commonwealth Employees) Act 1976 (s 7A). Where the statutory pension regime applies, the Solicitor-General has rights to a pension calculated in accordance with the modified Judges’ Pensions Act 1968, including the discounted-rate pathways in s 16(6)–(8) and the right to apply for a disability certificate (s 16(9)).

An acting Solicitor-General has the same functions and entitlements while acting (s 4(2) and s 11). A person who was a Commonwealth superannuation member immediately before appointment holds the right to elect, within three months, to move into the judicial-pension regime (s 14(2)).

The Attorney-General’s rights include the right to refer legal questions, to request additional counsel work, to grant or withhold consent to outside practice, to delegate powers (subject to the exclusions in s 17(6)), and to issue (or refuse to issue) disability certificates.

The Act does not create criminal offences or civil penalty provisions. Enforcement is essentially internal to the executive and parliamentary processes. The principal sanction is compulsory removal from office under s 10. If any of the three grounds—incapacity (other than temporary illness), misbehaviour, or bankruptcy/insolvency steps—is satisfied, the Governor-General “shall” remove the Solicitor-General. The mandatory language removes discretion once a ground is established.

Misbehaviour is not defined in the Act. The statute simply uses the word, leaving its content to be informed by the common-law understanding applicable to other constitutional officers, although the Act itself supplies no further elaboration.

The pension regime contains indirect sanctions. A person who ceases office under s 10(b) (misbehaviour) is excluded from the fallback discounted-pension regime in s 16(4)(b). Similarly, certain elections and cessations of prior pensions operate automatically on the occurrence of defined events (ss 14(2B), 16(2)(a), 16(3), 16(4A)).

Transparency enforcement is achieved through the parliamentary tabling requirement in s 9(2). Failure to table would constitute a breach of the statute, although the Act does not specify a consequence. The delegation provisions in s 17 are enforceable through ordinary administrative-law remedies; a purported delegation of an excluded national-security power would be ultra vires.

Review by the Administrative Review Tribunal of a refusal to issue a disability certificate (s 16(11)) provides a limited external check on the Attorney-General’s exercise of that particular power. Otherwise, enforcement of the Act’s requirements relies on political accountability, parliamentary scrutiny, and the capacity of the Governor-General (on advice) to act where statutory preconditions are met.

The Law Officers Act 1964 is deliberately woven into a web of other Commonwealth statutes. The most prominent interaction is with the Judges’ Pensions Act 1968. Section 16(1) applies most of that Act to Solicitors-General (with the explicit exclusion of subsection 4(2)) as if the Solicitor-General were a Judge. Sections 16(2)–(10) then modify the application of that Act in specific scenarios, including aggregation of service, cessation of pensions, and the substitution of discounted rates. The definition of “relevant provisions of the Judges’ Pensions Act 1968” in s 16(12) and the incorporation of the statutory salary-ratio formula in s 16(11A) further integrate the two statutes.

Superannuation legislation is engaged by s 14 and by the pension cessation rules. A pre-appointment member of the CSS, PSS or PSSAP schemes may elect to exit those schemes and enter the judicial-pension regime. The timing and effect of that election are deemed to occur immediately before appointment (s 14(2B)(b)).

The Remuneration Tribunal Act 1973 and s 7 of the Judicial and Statutory Officers (Remuneration and Allowances) Act 1984 are expressly preserved by s 7(3). Long service leave is preserved by s 7A’s subordination of ss 6 and 7 to the Long Service Leave (Commonwealth Employees) Act 1976.

The Acts Interpretation Act 1901 is imported for acting-appointment rules via the note to s 11(1). The Australian Security Intelligence Organisation Act 1979 (other than subsections 34JE(3) and (4)) and the Telecommunications (Interception and Access) Act 1979 are carved out of the Attorney-General’s delegation power (s 17(6)).

Section 18 contains an express transitional rule for references in other Commonwealth or Territory laws that were in force at the commencement of the 1964 Act: such references to the Solicitor-General are taken to mean the Secretary of the Attorney-General’s Department. This prevents unintended disruption to pre-existing statutory references.

The regulation-making power in s 19 is limited to matters required or permitted by the Act or necessary or convenient to carry it into effect, and regulations must not be inconsistent with the Act.

Although the supplied text is a compilation, it reveals several layers of amendment. The insertion of s 7A subjects appointment and remuneration to the Long Service Leave (Commonwealth Employees) Act 1976, reflecting the policy of aligning statutory office holders with general Commonwealth employment standards.

The addition of s 14 and the extensive amendments to s 16 address the interaction between the Solicitor-General’s office and the successive Commonwealth superannuation schemes (1976, 1990 and 2005 Acts). These changes allow an incoming Solicitor-General who is already a scheme member to choose whether to remain in that scheme or move to the judicial-pension regime. The three-month election window and the “taken to have ceased” deeming rules were introduced to provide certainty and to prevent double-dipping.

The post-31 December 1997 cut-off in s 16(1AA) and the salary-ratio formula in s 16(11A) are clearly later additions. The formula ties the Solicitor-General’s notional salary to movements in Federal Court judicial salaries since 1997, ensuring pensions keep pace with judicial remuneration without the need for separate annual determinations. The detailed discounted-rate mechanism in s 16(5)–(8) and the Administrative Review Tribunal review right in s 16(11) further modernise the pension pathway for long-serving Solicitors-General who do not qualify for a full judicial-style pension.

Section 17(6) exclusions for ASIO and telecommunications-interception powers reflect post-1979 policy decisions to keep sensitive national-security delegations within the Attorney-General’s personal control rather than allowing routine sub-delegation to the Solicitor-General.

These changes collectively respond to three pressures: (1) the need to maintain parity between the Solicitor-General and the federal judiciary in pension and remuneration matters; (2) the evolution of Commonwealth superannuation from a single scheme to a choice-of-funds model; and (3) the growth of national-security legislation that Parliament has chosen to insulate from delegation.

The text of the Law Officers Act 1964 itself contains no reference to any specific court challenges or decided cases. The statute does, however, anticipate certain points of legal tension. The undefined term “misbehaviour” in s 10(b) is left to be interpreted according to constitutional doctrine applicable to removal of other officers, although the Act supplies no gloss. The compulsory language of s 10 (“shall remove”) raises questions about whether the Governor-General retains any residual discretion once a ground is factually established.

The pension provisions in s 16 have the potential to generate controversy around the calculation of the “appropriate current salary” under the statutory formula in s 16(11A). Because the formula relies on the salary payable to a non-Chief-Justice Federal Court judge at the calculation time, any dispute about what that salary actually is at a given moment could affect pension quantum.

The exclusion of certain national-security powers from delegation in s 17(6) reflects a legislative judgment that those powers are too sensitive for even the Solicitor-General to exercise. Any future attempt to test the boundaries of that exclusion could give rise to justiciable controversy.

The obligation in s 9(2) to table reasons for consent to outside practice invites parliamentary scrutiny and, potentially, political controversy if the reasons are thought inadequate. Because the Act provides no enforcement mechanism beyond tabling, the efficacy of this safeguard depends on parliamentary willingness to debate the statement.

The review right conferred on the Administrative Review Tribunal by s 16(11) is a relatively recent procedural innovation that brings the Attorney-General’s refusal to certify permanent disability or infirmity within merits-review oversight. Any exercise of that jurisdiction would necessarily require the Tribunal to examine medical and occupational evidence concerning the Solicitor-General’s capacity, which could itself become a matter of public controversy.

Overall the Act is drafted to minimise rather than invite litigation, relying instead on executive self-discipline, parliamentary oversight and the professional culture of the office.

Most practitioners assume the Solicitor-General is simply “the government’s senior barrister.” The statute reveals a more nuanced picture. The functions in s 12 are expressed as duties of the office rather than powers that may be declined; once the Attorney-General requests an opinion or representation, the Solicitor-General is statutorily required to provide it. The apparent breadth of s 12(a)(viii) (“any other person or body for whom the Attorney-General requests him or her to act”) is not unlimited; it must still be read with the constitutional role of the Solicitor-General and the implied limitation that the person or body must be one for whom the Commonwealth can properly provide legal services.

The interaction between s 14 and s 16 is a trap for new appointees. A Solicitor-General who was a PSSAP member and who fails to make the election within three months remains in the superannuation scheme and is permanently excluded from the Judges’ Pensions Act regime (s 14(1)). Conversely, an election irrevocably moves the person into the judicial-pension world from the moment of appointment.

The discounted-pension formula in s 16(5) is often misunderstood. The 0.5 per cent per month rate is not cumulative in the ordinary sense; the statute caps it at 60 per cent and then applies a further 2.5 per cent reduction for each year between cessation and the triggering event. The choice of the “lesser” of the two limbs can produce counter-intuitive outcomes for shorter-serving Solicitors-General.

Section 9(1) uses the phrase “engage in the practice of a barrister or solicitor or engage in paid employment.” The disjunctive drafting means that even unpaid work that could be characterised as “practice” might require consent. The parliamentary-tabling obligation is triggered by the giving of consent, not by the performance of the work, so timing is critical.

The note to s 11(1) importing s 33A of the Acts Interpretation Act 1901 is easily overlooked. That section imposes a suite of default rules about acting appointments (including maximum term, remuneration and validation) that apply unless the Law Officers Act displaces them. Because the Law Officers Act is largely silent on those mechanics, s 33A fills the gaps.

Finally, s 18 is not spent. It continues to operate on any pre-1964 law of a Territory (or any Commonwealth law that has not been amended) that still uses the old terminology. In obscure statutes or regulations that have escaped modernisation, a reference to “the Solicitor-General” may actually mean the Secretary of the Attorney-General’s Department.

Compliance for a prospective Solicitor-General begins at the appointment stage. The candidate must confirm that he or she meets the five-year standing requirement in s 6(2). Upon appointment, an immediate audit of existing superannuation membership is required so that a considered election under s 14(2) can be made within the strict three-month window. The election notice must be in writing to the Minister.

While in office the Solicitor-General must maintain a strict separation between official functions and any outside activities. Any request for consent under s 9(1) should be documented in advance and should address why the proposed work will not impair the ability to perform statutory functions. If consent is granted, the Solicitor-General should diarise the 15-sitting-day tabling obligation that falls on the Attorney-General and offer drafting assistance if requested.

Day-to-day compliance centres on the functions in s 12. When asked to furnish an opinion, the Solicitor-General should ensure the request is recorded as coming from the Attorney-General personally or under delegated authority. When briefed to appear, the Solicitor-General should confirm that the client is within the classes listed in s 12(a) or has been properly added by Attorney-General request.

Remuneration and leave records should be kept in accordance with Remuneration Tribunal determinations, the Long Service Leave (Commonwealth Employees) Act 1976 and any terms and conditions determined under s 6(3). Any period of acting service should be tracked separately because it counts toward the seven-year threshold in s 16(4)(a).

For pension planning, the Solicitor-General (or former Solicitor-General) must monitor the triggers in s 16(6)–(8). An application for a disability certificate under s 16(9) should be supported by comprehensive medical evidence and should be lodged before age 60. If the certificate is refused, the applicant has 28 days (or such further time as the Tribunal allows) to seek Administrative Review Tribunal review.

The Attorney-General’s office must maintain delegation instruments that comply with s 17, expressly excluding the prohibited national-security and interception powers. Instruments should be reviewed whenever the Solicitor-General or Departmental Secretary changes.

Finally, any proposed amendment to the Act or to regulations made under s 19 must be checked for consistency with the core provisions, particularly the pension formula and the mandatory removal grounds. Because the Act appropriates the Consolidated Revenue Fund for pensions (s 16(13)), any policy change that could increase or decrease pension liability requires careful drafting to ensure the appropriation remains effective.

By treating the Act as an integrated code rather than a collection of isolated sections, practitioners can ensure that appointment, functions, ethical walls, remuneration, superannuation elections and ultimate pension outcomes all align.