Law Reform Commission Act 1973

Law Reform Commission Act 1973

No. 221 of 1973

AN ACT

To Constitute a Law Reform Commission.

[Assented to 20 December 1973]

BE IT ENACTED by the Queen, the Senate and the House of Representatives of Australia, as follows:—

Part I—Preliminary

Short title.

1. This Act may be cited as the Law Reform Commission Act 1973.

Commencement.

2. This Act shall come into operation on a date to be fixed by Proclamation.

Interpretation.

3. In this Act, unless the contrary intention appears—

“Australian Public Service” means the Public Service constituted under the Public Service Act 1922-1973;

“Chairman” means the Chairman of the Commission;

“Commission” means the Law Reform Commission;

“Deputy Chairman” means the Deputy Chairman of the Commission;

“judicial office” means an office of judge of a Federal Court or of the Supreme Court of a State or Territory;

“laws” includes rules of the Common Law or of Equity;

“laws to which this Act applies” means—

(a) laws made by, or by the authority of, the Parliament, including laws of the Territories so made; and

(b) any other laws, including laws of the Territories, that the Parliament has power to amend or repeal;

“member” means the Chairman or another member of the Com­mission ;

“reference” means a reference by the Attorney-General to the Com­mission under this Act;

“Territory” does not include Papua New Guinea.

Extension to Territories.

4. This Act extends to all the external Territories except Papua New Guinea.

Part II—Establishment, Functions and Powers of the Commission

Establishment of Commission.

5. There is established by this Act a Commission by the name of the Law Reform Commission.

Functions of Commission.

6. (1) The functions of the Commission are, in pursuance of references to the Commission made by the Attorney-General, whether at the suggestion of the Commission or otherwise—

(a) to review laws to which this Act applies with a view to the systematic development and reform of the law, including, in particular—

(i) the modernization of the law by bringing it into accord with current conditions;

(ii) the elimination of defects in the law;

(iii) the simplification of the law; and

(iv) the adoption of new or more effective methods for the administration of the law and the dispensation of justice;

(b) to consider proposals for the making of laws to which this Act applies;

(c) to consider proposals relating to—

(i) the consolidation of laws to which this Act applies; or

(ii) the repeal of laws to which this Act applies that are obsolete or unnecessary; and

(d) to consider proposals for uniformity between laws of the Territories and laws of the States,

and to make reports to the Attorney-General arising out of any such review or consideration and, in such reports, to make such recommendations as the Commission thinks fit.

(2) The Attorney-General may—

(a) modify the terms of a reference; and

(b) give directions to the Commission as to the order in which it is to deal with references.

Certain matters to be considered.

7. In the performance of its functions, the Commission shall review laws to which this Act applies, and consider proposals, with a view to ensuring—

(a) that such laws and proposals do not trespass unduly on personal rights and liberties and do not unduly make the rights and liberties of citizens dependent upon administrative rather than judicial decisions; and

(b) that, as far as practicable, such laws and proposals are consistent with the Articles of the International Covenant on Civil and Political Rights.

Powers of the Commission.

8. Subject to this Act, the Commission has power to do all things necessary or convenient to be done for or in connexion with the performance of its functions.

Commission to comply with requirements of Parliament.

9. If either House of the Parliament or a Committee of either House, or of both Houses, of the Parliament requires the Commission to furnish to that House or Committee any information (including information in respect of expenditure or proposed expenditure of the Commission) con­cerning the performance of the functions, or the exercise of the powers, of the Commission under this Act, the Commission shall comply with the requirement.

Interim reports.

10. Where the Attorney-General has referred a matter to the Commission—

(a) the Commission may, at any time before making its report in pursuance of the reference, make an interim report on its work under the reference; and

(b) the Attorney-General may, at any time before the Commission makes its report in pursuance of the reference, direct the Commission to make an interim report on its work under the reference.

Part III—Constitution of the Commission

Commission to be a body corporate.

11.(1) The Commission—

(a) is a body corporate with perpetual succession;

(b) shall have a common seal;

(c) may acquire, hold and dispose of real and personal property; and

(d) may sue and be sued in its corporate name.

(2) The common seal of the Commission shall be kept in such custody as the Commission directs and shall not be used except as authorized by the Commission.

(3) All courts, judges and persons acting judicially shall take judicial notice of the common seal of the Commission affixed to a document and shall presume that it was duly affixed.

Constitution of Commission.

12. (1) The Commission shall consist of-

(a) a Chairman; and

(b) four or more other members,

each of whom shall be—

(c) a judge of a Federal Court or of the Supreme Court of a State or Territory;

(d) a person who has been enrolled as a legal practitioner of the High Court, or of the Supreme Court of a State or Territory, for not less than five years;

(e) a person who is a graduate in law of a university and has had experience as a member of the academic staff of a tertiary educational institution; or

(f) a person who, in the opinion of the Governor-General, is, by reason of his special qualifications, training or experience, suitable for appointment to the Commission.

(2) All members of the Commission shall be appointed by the Governor-General.

(3) The Chairman shall be appointed as a full-time member.

(4) Members other than the Chairman shall be appointed either as full-time members or as part-time members.

(5) The holder of a judicial office shall not be appointed as a full-time member (other than the Chairman) unless the Chairman is the holder of a judicial office.

(6) A member shall not be appointed for more than seven years but is eligible for re-appointment.

(7) The instrument of appointment of each member shall specify the terms and conditions of his appointment, including the period for which the appointment is made.

(8) The instrument of appointment of a member, being a legal practitioner of the Supreme Court of a Territory, may designate him as a member in respect of that Territory, and a member so designated shall take part in the proceedings of the Commission in respect of such references only as the Chairman determines to be of special significance in relation to that Territory.

(9) The exercise or performance of the functions or powers of the Commission is not affected by reason only of there being a vacancy in the office of a member.

Appointment of the holder of judicial office not to affect tenure, &c.

13. The appointment of, or service by a person who holds an office of judge of a Federal Court or of the Supreme Court of a Territory as a member of the Commission shall not affect his tenure of that judicial office or his rank, title, status, precedence, salary or annual allowances or other rights or privileges as the holder of that judicial office and, for all purposes, his service as a member of the Commission shall be taken to be service as the holder of that judicial office.

Arrangements for appointment of the holder of a judicial office of a State.

14.(1) The Governor-General may, for the purpose of appointing to the Commission a person who is the holder of a judicial office of a State, enter into such arrangement with the Governor of that State as is necessary to secure that person’s services.

(2) An arrangement under sub-section (1) may provide for Australia to reimburse a State with respect to the services of the person to whom the arrangement relates.

Appointment of Deputy Chairman.

15. (1) The Governor-General may appoint a member to be Deputy Chairman of the Commission.

(2) The Deputy Chairman holds office as Deputy Chairman during the pleasure of the Governor-General.

(3) The Deputy Chairman may exercise any power of the Chairman—

(a) during a vacancy in the office of Chairman; or

(b) during any period, or during all periods, when the Chairman is absent from duty or absent from Australia, or for any other reason, unable to perform the duties of his office.

Salary and allowances of members.

16. (1) A full-time member, not being the holder of a judicial office, shall receive such salary and annual allowance (if any) as the Parliament provides but, until 1 January 1975, he shall receive such salary and annual allowance (if any) as are prescribed.

(2) A part-time member, not being the holder of a judicial office, shall receive such remuneration and allowances for his services as such a member as are prescribed in relation to him.

(3) A full-time member shall, in addition to the salary and any annual allowance to which he is entitled under sub-section (1) or by virtue of his judicial office, receive such allowances (other than annual allowances) as are prescribed in relation to him.

Termination of appointments.

17. (1) The Governor-General may terminate the appointment of a member by reason of misbehaviour or physical or mental incapacity.

(2) If—

(a) a member becomes bankrupt, applies to take the benefit of any law for the relief of bankrupt or insolvent debtors, compounds with his creditors or makes an assignment of his remuneration for their benefit; or

(b) a full-time member engages, except with the approval of the Attorney-General, in paid employment outside the duties of his office,

the Governor-General shall terminate the appointment of the member concerned.

(3) Sub-sections (1) and (2) do not apply to a member who is the holder of a judicial office but, if a member who is the holder of a judicial office ceases to hold a judicial office, the Governor-General may terminate his appointment.

Resignations.

18. A member may resign his office by writing under his hand delivered to the Governor-General.

Leave of absence for full-time members.

19. The Attorney-General may grant leave of absence to a full-time member upon such terms and conditions as to payment of salary or otherwise as the Attorney-General determines.

Meetings of Commission.

20. (1) The Chairman shall convene such meetings of the Commission as are, in his opinion, necessary for the efficient conduct of its affairs.

(2) The quorum for a meeting shall be three members.

(3) A question arising at a meeting of the Commission shall be decided by a majority of the votes of members present and voting.

(4) The Chairman shall preside at all meetings at which he is present

(5) In the event of the absence of the Chairman from a meeting, the Deputy Chairman shall preside at that meeting.

(6) In the absence of the Chairman and the Deputy Chairman from a meeting, the members present shall elect one of their number to preside at that meeting and the person so elected shall preside accordingly.

(7) At a meeting, the Chairman or other member who presides has a deliberative vote and, in the event of votes being equal, has a casting vote.

(8) The Commission may regulate and conduct the proceedings at its meetings as it thinks fit and shall keep minutes of those proceedings.

Meetings of Divisions.

21. (1) A meeting of a Division constituted under sub-section 27(1) shall—

(a) if the Chairman is among the members of the Division, be convened and presided over by the Chairman;

(b) if the Deputy Chairman but not the Chairman is among the members of the Division, be convened and presided over by the Deputy Chairman; and

(c) in any other case, be convened and presided over by a member of the Division specified for the purpose by the Chairman.

(2) In the event of the absence from a meeting of a Division of the member who, pursuant to sub-section (1), is to preside, those members of the Division who are present may elect one of their number to preside at that meeting.

(3) The quorum for a meeting of a Division shall be two members.

(4) The member presiding at a meeting of a Division shall have a deliberative vote.

(5) A question arising at a meeting of a Division shall be decided by a majority of the votes of the members present and voting.

(6) If at a meeting of a Division at which only two members are present, those members differ in opinion on a question, the member presiding shall postpone the determination of that question to a meeting of the Division at which all the members of the Division are present.

(7) In the event of an equality of votes on a question before a meeting of the Division at which more than two members are present, the member presiding shall have a casting vote.

(8) A Division may regulate the conduct of its proceedings at meetings and shall keep minutes.

Appointment of staff.

22. (1) The Chairman may, on behalf of the Commission and with the approval of the Attorney-General, appoint as employees of the Commission such persons as he thinks necessary for the purposes of this Act.

(2) The terms and conditions of employment of employees of the Commission are such as are from time to time determined by the Chair­man with the approval of the Attorney-General.

Chairman may engage consultants.

23. (1) The Chairman may, with the approval of the Attorney- General, engage persons having suitable qualifications and experience as consultants to the Commission.

(2) The terms and conditions of the engagement of a person under sub-section (1) are, subject to this Act, such as are determined by the Chairman with the approval of the Attorney-General.

Preservation of rights.

24. Where, immediately before his appointment under this Act, a member or an employee of the Commission was an officer of the Australian Public Service or a person to whom the Officers' Rights Declaration Act 1928-1969 applied—

(a) he retains his existing and accruing rights;

(b) for the purpose of determining those rights, his service under this Act shall be taken into account as if it were service in the Australian Public Service; and

(c) the Officers’ Rights Declaration Act 1928-1969 applies as if this Act and this section had been specified in the Schedule to that Act.

Application of Superannuation Act to member.

25. (1) For the purposes of sub-sections 4 (3A) and (4) of the Superannuation Act 1922-1973, a full-time member shall be deemed to be required, by the terms of his appointment, to give the whole of his time to the duties of his office.

(2) For the purposes of sections 145 and 146 of the Superannuation Act 1922-1973, a full-time member shall be deemed to be employed by the Commission.

(3) For the purposes of the Superannuation Act 1922-1973, the termination of the appointment of a full-time member by reason of physical or mental incapacity shall be deemed to be retirement on the ground of invalidity.

(4) This section does not apply in relation to the holder of a judicial office.

Application of Superannuation Act to staff, &c.

26. The Commission is an approved authority for the purposes of the Application Superannuation Act 1922-1973.—

Part IV—Proceedings of the Commission

Chairman may constitute Division.

27. (1) The Chairman may constitute a Division consisting of not less than three members including, if the Chairman thinks fit, himself, for the purposes of a particular reference.

(2) A Division constituted under sub-section (1) shall, for the purposes of the reference in respect of which it is constituted, and for the purpose of making a report and recommendations to the Attorney-General arising out of that reference, be deemed to be the Commission.

Commission to inform itself in any manner.

28. For the purposes of a review or consideration of any matter the subject of a reference, the Commission may inform itself in such manner as it thinks fit.

Part V—Finance

Moneys payable to Commission, and estimates of expenditure.

29. (1) There are payable to the Commission such moneys as are appropriated by the Parliament for the purposes of the Commission.

(2) The Treasurer may give directions as to the amounts in which, and the times at which, moneys referred to in sub-section (1) are to be paid to the Commission.

(3) The Commission shall prepare estimates, in such form as the Attorney-General directs, of receipts and expenditure of the Commission for each financial year and, if the Attorney-General so directs, for any other period specified by the Attorney-General and the Commission shall submit estimates so prepared to the Attorney-General not later than such date as the Attorney-General directs.

(4) Moneys of the Commission shall not be expended by the Commission otherwise than in accordance with estimates of expenditure approved by the Attorney-General.

Purchase and disposal of assets.

30. The Commission shall not, without the approval of the Attorney-General—

(a) acquire any property, right or privilege for a consideration exceeding in amount or value $50,000 or, if a higher amount is prescribed, that higher amount;

(b) dispose of any property, right or privilege where the amount or value of the consideration for the disposal, or the value of the property, right or privilege, exceeds $50,000 or, if a higher amount is prescribed, that higher amount;

(c) enter into a contract for the construction of a building for the Commission, being a contract under which the Commission is to pay an amount exceeding $50,000 or, if a higher amount is prescribed, that higher amount; or

(d) enter into a lease of land for a period exceeding ten years.

Bank accounts of Commission.

31. (1) The Commission may open and maintain an account or accounts with an approved bank or approved banks and shall maintain at all times at least one such account.

(2) The Commission shall pay all moneys received by it into an account referred to in this section.

(3) In this section, “approved bank” means the Reserve Bank of Australia, or another bank approved by the Treasurer.

Application of moneys of Commission.

32. The moneys of the Commission shall be applied only—

(a) in the discharge of obligations and liabilities of the Commission arising under this Act; and

(b) in the payment of any salary and allowances payable under this Act.

Proper accounts to be kept by Commission.

33. The Commission shall cause to be kept proper accounts and records of the transactions and affairs of the Commission and shall do all things necessary to ensure that all payments out of its moneys are correctly made and properly authorized and that adequate control is maintained over the assets of, or in the custody of, the Commission and over the incurring of liabilities by the Commission.

Audit

34.(1) The Auditor-General shall inspect and audit the accounts and records of financial transactions of the Commission and records relating to assets of, or in the custody of, the Commission, and shall forthwith draw the attention of the Attorney-General to any irregularity disclosed by the inspection and audit that is, in the opinion of the Auditor-General, of sufficient importance to justify his so doing.

(2) The Auditor-General may, at his discretion, dispense with all or any part of the detailed inspection and audit of any accounts or records referred to in sub-section (1).

(3) The Auditor-General shall, at least once in each year, report to the Attorney-General the results of the inspection and audit carried out under sub-section (1).

(4) The Auditor-General or an officer authorized by him is entitled at all reasonable times to full and free access to all accounts, records, documents and papers of the Commission relating directly or indirectly to the receipt or payment of moneys by the Commission or to the acqui­sition, receipt, custody or disposal of assets by the Commission.

(5) The Auditor-General or an officer authorized by him may make copies of, or take extracts from, any such accounts, records, documents or papers.

(6) The Auditor-General or an officer authorized by him may require any person to furnish him with such information in the possession of the person or to which the person has access as the Auditor-General or authorized officer considers necessary for the purposes of the functions of the Auditor-General under this Act, and the person shall comply with the requirement.

(7) A person who contravenes sub-section (6) is guilty of an offence punishable, upon conviction, by a fine not exceeding $200.

Annual reports of commission.

35.(1) The Commission shall, as soon as practicable after 30 June in each year, prepare and furnish to the Attorney-General a report of its operations during the year ended on that date, together with financial statements in respect of that year in such form as the Treasurer approves.

(2) Before submitting financial statements to the Attorney-General, the Commission shall submit them to the Auditor-General, who shall report to the Attorney-General—

(a) whether the statements are based on proper accounts and records;

(b) whether the statements are in agreement with the accounts and records;

(c) whether the receipt and expenditure of moneys, and the acquisition and disposal of assets, by the Commission during the year have been in accordance with this Act; and

(d) as to such other matters arising out of the statements as the Auditor-General considers should be reported to the Attorney-General.

(3) The Attorney-General shall cause the report and financial statements of the Commission, together with the report of the Auditor-General to be laid before each House of the Parliament within fifteen sitting days of that House after their receipt by the Attorney-General.

(4) The first report and financial statements of the Commission under this section shall be submitted as soon as practicable after 30 June 1974 and shall relate to the operations of the Commission during the period that commenced at the commencement of this Act and ended on that date.

Exemption from taxation.

36. The Commission is not subject to taxation under any law, including a law of a State.

Part VI—Miscellaneous

Reports to be laid before each House of the Parliament.

37. Where the Attorney-General receives a report (including an interim report) on a matter the subject of a reference, he shall lay the report before each House of the Parliament within fifteen sitting days of that House after its receipt by the Attorney-General.

Regulations.

38. The Governor-General may make regulations, not inconsistent with this Act, prescribing all matters which by this Act are required or permitted to be prescribed, or which are necessary or convenient to be prescribed for carrying out or giving effect to this Act.

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