Parliamentary Counsel Act 1970

Understanding the operation of the Parliamentary Counsel Act 1970 requires grasping several distinct statutory concepts:

• The Office of Parliamentary Counsel (OPC) as a Listed Entity: Under section 2(5) of the Act, the OPC is designated as a "listed entity" under the PGPA Act. This means that despite its specialized professional legal role, it is structurally managed as a distinct Commonwealth department for financial, governance, and reporting purposes. The First Parliamentary Counsel is the "accountable authority" and is legally responsible for the financial performance and governance of the entire agency.
• Subordinate Legislation: Section 3(4) provides an expansive definition of "subordinate legislation." It encompasses not only regulations, rules, ordinances, and proclamations made under Commonwealth laws, but also any other instruments that have or are given the force of Commonwealth law, or are otherwise related to or have effect for the purposes of Commonwealth law. This broad definition ensures that the OPC's drafting and publishing mandate covers the entire spectrum of delegated legislation.
• The Non-Exclusivity Principle and its Limitation: Section 3(2) states that the fact that an activity is within the functions of the OPC does not, of itself, exclude other persons or bodies from engaging in that activity. However, this non-exclusivity is explicitly qualified by referencing directions issued under section 55ZF of the Judiciary Act 1903. This creates a conceptual structure where the OPC does not have an absolute statutory monopoly on drafting, but the executive government can use its legal service directions to centralize drafting work exclusively within the OPC.
• Notional Payments: Under section 16C, the Act introduces the concept of "notional payment of fees." Because the Commonwealth cannot contract with itself or sue itself for debts, this mechanism allows the Minister administering the PGPA Act to issue directions for transferring funds between internal accounts to settle debts incurred when other Commonwealth agencies hire the OPC for non-bill drafting services.

The Parliamentary Counsel Act 1970 directly affects several key groups across the public, private, and international sectors:

• The First and Second Parliamentary Counsel: These statutory officers are directly governed by the Act regarding their appointments, terms of office, remuneration, restrictions on practice, and mandatory termination conditions. They are subjected to strict rules, including a total prohibition on outside professional legal practice or other paid employment.
• Commonwealth Departments and Agencies: Government entities requiring the creation of subordinate legislation, such as regulations or legislative instruments, or requiring official compilations of their enabling Acts, must interact with the OPC. They are subject to the fee-charging framework under section 16B and must comply with the notional payment transfer directions issued under section 16C.
• Members of Parliament: Both backbenchers and ministers rely on the OPC for the drafting of bills and parliamentary amendments. While the OPC's drafting of primary bills is funded centrally, parliamentary offices are directly impacted by the availability and statutory prioritization of OPC drafting resources.
• Foreign Governments: Under section 3(1)(h), foreign states seeking legislative drafting, printing, or publishing assistance from the Australian government can access the OPC's specialized expertise, provided the Minister grants written approval.
• The Public, Legal Practitioners, and Researchers: Anyone relying on the Federal Register of Legislation or the Government Notices Gazettes is affected by the OPC's performance of its publication and compilation duties. The accuracy and currency of the consolidated laws of the Commonwealth are entirely dependent on the OPC exercising its powers under this Act and the Legislation Act 2003.

The Act establishes a precise balance of statutory duties, restrictions, and rights for the officers of the OPC and the agency itself:

• Duty to Make the Oath or Affirmation: Under section 14, the First and Second Parliamentary Counsel are strictly prohibited from performing any duties of their office unless they have made an oath or affirmation of allegiance and office in accordance with the forms prescribed in the Schedule. This oath must be made before a justice of the peace or a commissioner for taking affidavits.
• Duty of Exclusive Service: Section 9 imposes a strict duty on both the First and Second Parliamentary Counsel not to engage in practice as a barrister or solicitor, and not to engage in any paid employment outside the duties of their office.
• Duty of Governance: The First Parliamentary Counsel is under a statutory duty to control the OPC under the Minister (section 2(4)) and must fulfill all the administrative and financial duties of an "accountable authority" under the PGPA Act.
• Right to Charge and Recover Fees: Under section 16B, the OPC has the statutory right to charge fees on behalf of the Commonwealth for things done in the performance of its functions, with the sole exception of drafting bills and parliamentary amendments (paragraphs 3(1)(a) and (b)). Under section 16B(3), these fees constitute a debt due to the Commonwealth and are legally recoverable by the OPC in a court of competent jurisdiction.
• Right to Leave and Remuneration: The First and Second Parliamentary Counsel have a right to remuneration determined by the Remuneration Tribunal (section 6) and recreation leave entitlements (section 7). Non-recreation leave may be granted at the discretion of the Minister.

The Parliamentary Counsel Act 1970 contains no criminal offences or civil penalty provisions aimed at the general public. Instead, its enforcement mechanisms are administrative and focus on the tenure of the First and Second Parliamentary Counsel, alongside debt-recovery provisions for unpaid fees.

The primary enforcement tool for ensuring professional standards, financial propriety, and attendance is the termination clause under section 10. The Act distinguishes between discretionary and mandatory termination:

• Discretionary Termination: Under section 10(1), the Governor-General has the discretionary power to terminate the appointment of the First or a Second Parliamentary Counsel solely on the grounds of physical or mental incapacity.
• Mandatory Termination: Under section 10(2), the Governor-General has no discretion and must terminate the appointment of the First or a Second Parliamentary Counsel if certain statutory triggers occur. These triggers include:
  • Absence from duty without approved leave for 14 consecutive days, or for 28 days in any 12-month period.
  • Guilt of "misbehaviour" (which would include violating the section 9 ban on outside legal practice or paid employment).
  • Bankruptcy, applying for relief under insolvency laws, compounding with creditors, or making an assignment of remuneration for the benefit of creditors.

For commercial and inter-agency enforcement, section 16B(3) provides the OPC with the power to enforce unpaid fee liabilities. Any fee charged under the Act is a debt due to the Commonwealth and can be sued upon and recovered by the OPC in any court of competent jurisdiction, such as the Federal Court or State courts, subject to the jurisdictional limits of those courts.

The Parliamentary Counsel Act 1970 does not operate in isolation; it is a structural hub that interacts directly with several key pieces of Commonwealth legislation:

• The Public Governance, Performance and Accountability Act 2013 (PGPA Act): This Act provides the entire financial governance framework for the OPC. Section 2(5) of the Parliamentary Counsel Act explicitly integrates the OPC into the PGPA Act framework. Furthermore, the notional payment directions under section 16C are issued by the Minister responsible for the PGPA Act to facilitate internal financial transactions.
• The Public Service Act 1999: Under section 16, the staff of the OPC must be engaged under the Public Service Act. This section establishes the OPC as a "Statutory Agency" and designates the First Parliamentary Counsel as the Head of that Statutory Agency, giving the First Parliamentary Counsel the employer powers of a Secretary of a Department.
• The Legislation Act 2003: This is the most critical operational companion. While the Parliamentary Counsel Act establishes the OPC and its general functions, the Legislation Act 2003 provides the detailed legal mechanics for registering, compiling, and publishing laws. The First Parliamentary Counsel is given specific powers under the Legislation Act, such as the power to make non-substantive editorial changes to laws when preparing compilations.
• The Judiciary Act 1903: Section 3(2) of the Act notes that directions under section 55ZF of the Judiciary Act (the Legal Services Directions) can restrict the extent to which other bodies or persons can draft legislation. This allows the Attorney-General to legally direct Commonwealth agencies to only use the OPC for drafting, neutralizing the nominal non-exclusivity of section 3(2).
• The Remuneration Tribunal Act 1973: Under section 6, the remuneration and recreation leave entitlements of the statutory office holders are tied directly to determinations made under the Remuneration Tribunal Act.

The Parliamentary Counsel Act 1970 has undergone steady structural modernization since its original enactment:

• Enactment (1970): The original Act (No. 8, 1970) established the OPC under the Gorton Government to separate legislative drafting from the general administrative tasks of the Attorney-General's Department.
• The 1981 Reforms (Statute Law Revision Act 1981): This Act modernized the appointment and acting appointment provisions, repealing outdated sections (such as sections 11 and 12) and substituting a more flexible acting appointment mechanism in section 15.
• The 1983 and 1984 Financial and Staffing Updates: The Statute Law (Miscellaneous Provisions) Act (No. 1) 1983 inserted section 16A to handle financial delegations. This was followed by the Public Service Reform Act 1984, which updated the staffing provisions to align with broader public service reforms.
• The 1999 Public Service Transition: The Public Employment (Consequential and Transitional) Amendment Act 1999 amended section 16 to replace references to the old Public Service Act 1922 with the modern Public Service Act 1999, formally establishing the OPC as a Statutory Agency.
• The 2012 Consolidation (Parliamentary Counsel and Other Legislation Amendment Act 2012): This was a major structural reform. It transferred the functions of the Office of Legislative Drafting and Publishing (OLDP) from the Attorney-General's Department to the OPC. This amendment expanded the OPC’s functions under section 3 to include subordinate legislation and publishing. It also introduced the fee-charging framework in section 16B and section 16C.
• The 2014 PGPA Act Alignment: The Public Governance, Performance and Accountability (Consequential and Transitional) Amendment Act 2014 repealed section 16A and substituted modern governance language in section 2 and section 16C, formally linking the OPC to the PGPA Act framework.
• The 2024 Crown References Update (Crown References Amendment Act 2024): This recent amendment updated the Schedule to ensure the Oath and Affirmation formulas use flexible, gender-appropriate pronoun references in relation to the Sovereign.

Because the Parliamentary Counsel Act 1970 is primarily an internal machinery-of-government statute rather than a regulatory or commercially disruptive Act, it has not been the subject of significant direct litigation in the courts.

There are no recorded judicial decisions determining disputes over the terms of appointment, termination under section 10, or the recovery of debts under section 16B. The statutory offices of First and Second Parliamentary Counsel are highly stable, professional appointments, and any internal disputes regarding administrative governance are typically settled via public service processes rather than public litigation.

Where the work of the OPC does occasionally intersect with litigation, it is not the Parliamentary Counsel Act 1970 itself that is tested, but rather the legal instruments drafted or compiled by the OPC. For example, constitutional challenges to the validity of regulations or delegating Acts of Parliament focus on whether the executive or parliament had the substantive power to make those laws under the Australian Constitution. The fact that the OPC drafted them under its section 3 functions is legally uncontroversial and does not form a basis for challenging the laws themselves.

Similarly, disputes over the text of compilations or registration errors are litigated through judicial review of decisions made under the Legislation Act 2003 (such as challenge to an editorial change made by the First Parliamentary Counsel under section 15V of that Act), rather than under the administrative provisions of the 1970 Act.

Practitioners, agency compliance officers, and public servants must navigate several subtle legal risks and "gotchas" embedded in this legislation:

• The Illusion of Non-Exclusivity: A private contractor or public servant looking at section 3(2) might assume that anyone is legally permitted to draft Commonwealth legislation or subordinate instruments. However, the catch is the reference to section 55ZF of the Judiciary Act 1903. The Legal Services Directions issued by the Attorney-General practically strip away this non-exclusivity, making the use of OPC drafting services mandatory for almost all government agencies. Drafting an instrument without authorization can result in a breach of the Legal Services Directions, presenting a significant compliance risk for agency heads.
• The Constitutional Fee Trap: Under section 16B(2), any fee charged by the OPC for its drafting, publishing, or compilation services "must not be such as to amount to taxation." Under section 55 of the Constitution, laws imposing taxation must deal only with the imposition of taxation. If the OPC were to charge fees that exceeded cost recovery to such an extent that a court characterized them as a tax, the fee-charging mechanism would be constitutionally invalid. Agencies must ensure that any fee-charging schedule remains strictly defensible on a cost-recovery basis.
• The Strictness of Mandatory Termination: Unlike modern employment contracts that offer extensive disciplinary dispute resolution, section 10(2) is merciless. If a Second Parliamentary Counsel becomes bankrupt, or makes a private arrangement with creditors, or is absent for 14 consecutive days without formal leave, the Governor-General has no statutory discretion: the appointment must be terminated.
• The Oath/Affirmation Condition Precedent: Under section 14(1), performing the duties of First or Second Parliamentary Counsel without having first made the prescribed oath or affirmation is a statutory breach. While the Act does not specify an explicit penalty, any statutory instrument signed or official duty performed by an officer who has not taken the oath could face procedural challenges regarding its administrative validity.

To ensure absolute compliance with the Parliamentary Counsel Act 1970, different stakeholders must adopt specific compliance procedures:

For Commonwealth Agencies and Departments

• Budgeting for Subordinate Legislation: Agencies must recognize that while drafting primary bills under section 3(1)(a) is centrally funded, the OPC is entitled to charge fees under section 16B for subordinate legislation, compilations, and publishing. Agencies must budget for these costs and ensure their internal financial officers are prepared to execute "notional payments" in compliance with directions issued under section 16C.
• Adhering to Drafting Monopolies: Agencies must route all legislative drafting projects through the OPC in accordance with the Legal Services Directions (made under section 55ZF of the Judiciary Act 1903), rather than seeking to bypass the OPC by using in-house legal teams or private law firms, unless specific exemptions apply.

For Appointed Statutory Officers (FPC and SPC)

• Pre-commencement Oath: Immediately upon appointment, and before executing any official documents, drafts, or administrative decisions, the officer must take the Oath or Affirmation of Allegiance and Office before a justice of the peace or a commissioner for taking affidavits. This must be formally documented and filed within the agency's records.
• Outside Employment Screen: Appointees must completely divest themselves of any active legal practice as a barrister or solicitor, and resign from any other paid employment, directorships, or commercial roles to comply with the strict prohibition in section 9.
• Meticulous Leave Tracking: To prevent triggering the mandatory termination provision of section 10(2)(a), the FPC and SPC must ensure that every single day of absence from duty is formally covered by a recreation leave entitlement determined by the Remuneration Tribunal or other leave explicitly approved in writing by the Minister under section 7.

For Foreign Jurisdictions

• Securing Ministerial Approval: Any foreign state wishing to contract the OPC for legislative drafting assistance must ensure that the OPC has secured the formal, written approval of the Australian Minister under section 3(1)(h) before any work commences or contracts are executed.