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This is a Bill, not an Act. For current law, see the Acts databases.
1996
The Parliament of
the
Commonwealth of
Australia
HOUSE OF
REPRESENTATIVES
Presented and
read a first time
Australian
Law Reform Commission Bill 1996
No. ,
1996
(Attorney-General)
A
Bill for an Act to establish the Australian Law Reform Commission, and for
related purposes
9606520—975/18.6.1996—(65/96) Cat. No. 96
4736 8 ISBN 0644 444568
Contents
A Bill for an Act to
establish the Australian Law Reform Commission, and for related
purposes
The Parliament of Australia enacts:
This Act may be cited as the Australian Law Reform Commission Act
1996.
(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.
In this Act, unless the contrary intention appears:
Board means the Board of Management of the
Commission.
Board member means a member of the Board, and includes the
President and the Deputy President.
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.
Deputy President means the Deputy President of the
Commission, and includes any person for the time being acting in the office of
Deputy President.
Division means a Division of the Commission established under
section 40.
judicial office means:
(a) an office of judge or justice of a Federal Court; or
(b) an office whose holder has, under an Act, the same status as a judge
or justice of a Federal Court; or
(c) the office of President of the Defence Force Discipline Appeal
Tribunal.
laws includes common law and equity rules.
member means a member of the Commission, and includes the
President and the Deputy 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.
This Act extends to the external Territories.
(1) This section establishes a commission called the Australian Law Reform
Commission.
(2) The Commission:
(a) is a body corporate with perpetual succession; and
(b) is to have a common seal; and
(c) may acquire, hold or dispose of real and personal property;
and
(d) may sue or be sued in its corporate name.
(3) The Commission’s common seal must be kept in such custody as the
Commission directs, and must not be used except as authorised by the
Commission.
(4) All courts, judges and persons acting judicially must take judicial
notice of the imprint of the Commission’s common seal on a document, and
presume that the document was duly sealed.
(1) The Commission consists of:
(a) a President; and
(b) a Deputy President; and
(c) at least 4 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.
(1) All members must be appointed by the Governor-General.
(2) A person must not be appointed as a member unless he or she:
(a) is a judge or justice of a Federal Court, or of the Supreme Court of a
State or Territory; 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 Governor-General’s opinion, suitable for appointment
because of the person’s special qualifications, training or
experience.
(1) The President and Deputy President must be appointed as full-time
members.
(2) The other members must 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.
(4) In this section:
judicial office includes the office of judge of the Supreme
Court of a State or Territory.
(1) Subject to sections 17 and 18, a member holds office for the term, not
longer than 7 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.
(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.
(1) The Governor-General may, for the purposes of appointing a judge of
the Supreme Court of a State as a member, enter into any necessary arrangement
with the Governor of the State.
(2) The Attorney-General may, for the purposes of the appointment of a
judge of the Supreme Court of the Australian Capital Territory or of the
Northern Territory as a member, enter into any necessary arrangement with the
Chief Minister of the relevant 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.
(1) The Deputy President is 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; and
(b) 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.
(2) The Deputy President must not continue to act for longer than 12
months during a vacancy in the office of President.
(3) While the Deputy President is acting as
President:
(a) the Deputy President has, and may exercise, all the President’s
powers, and must perform all the President’s functions and duties;
and
(b) this Act, and all other relevant Acts, apply to the Deputy President
as if he or she were the President.
(4) Subject to subsection (5), while the Deputy President is acting as
President, he or she must be paid, in addition to the remuneration and
allowances payable to the Deputy President:
(a) an amount equal to the difference between the remuneration payable to
the Deputy President and the remuneration payable to the President;
and
(b) an amount equal to the difference between any allowance payable to the
Deputy President and the corresponding allowance payable to the President;
and
(c) if an allowance is payable to the President, but no corresponding
allowance is payable to the Deputy President—the allowance payable to the
President.
(5) Paragraph (4)(a) does not apply if the Deputy President is the holder
of a judicial office or a judge of the Supreme Court of a State or
Territory.
(6) Anything done by the Deputy President when purporting to act as
President is not invalid merely because the occasion for the Deputy President to
act had not arisen or had stopped.
(1) The Attorney-General may appoint a full-time member (other than the
Deputy President) 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.
(2) The Attorney-General may appoint a full-time member (other than
the President) to act as Deputy President:
(a) during a vacancy in the office of Deputy President, whether or not an
appointment has previously been made to the office; or
(b) during any period, or during all periods, when the Deputy President is
absent from duty or from Australia or is, for any other reason, unable to
perform the functions of the office.
(3) A person appointed under this section may only act as the President
during a period if:
(a) there is a vacancy in the office of Deputy President during that
period; or
(b) the Deputy President is, for any reason, unable to act in the office
of President during that period.
(4) Anything done by a person purporting to act under an
appointment under this section is not invalid merely because:
(a) the occasion for the appointment had not arisen; or
(b) there was a defect or irregularity in or in connection with the
appointment; or
(c) the appointment had stopped having effect; or
(d) the occasion for the person to act had not arisen or had
stopped.
(1) The Attorney-General may appoint a part-time member to act as a
full-time member (other than the President or Deputy 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.
(2) Anything done by a person purporting to act under an appointment under
this section is not invalid merely because:
(a) the occasion for the appointment had not arisen; or
(b) there was a defect or irregularity in or in connection with the
appointment; or
(c) the appointment had stopped having effect; or
(d) the occasion for the person to act had not arisen or had
stopped.
(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.
(1) A member who is not the holder of a judicial office or a judge of the
Supreme Court of a State or Territory 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.
(1) The Governor-General may terminate a member’s appointment for
misbehaviour, or physical or mental incapacity.
(2) The Governor-General must terminate a member’s appointment
if:
(a) the member becomes bankrupt, applies to take the benefit of any law
for the relief of bankrupt or insolvent debtors, compounds with his or her
creditors or makes an assignment of his or her remuneration for their benefit;
or
(b) the member fails, without reasonable excuse, to comply with section 33
or 39.
(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 member who is the
holder of a judicial office or a judge of the Supreme Court of a State or
Territory.
(5) If a member who is the holder of a judicial office, or the office of
judge of the Supreme Court of a State or Territory, stops holding that office,
the Governor-General may terminate the member’s appointment.
A member may resign from the office of member by signing a written
resignation and delivering it to the Governor-General.
(1) Subject to section 87E of the Public Service Act 1922, 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 the Deputy President or any other full-time
member leave of absence (except recreation leave) on such terms and conditions
as to remuneration or otherwise as the President determines.
(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.
(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.
(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.
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.
(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 the International Covenant
on Civil and Political Rights.
(2) In performing its functions in relation to a matter, the Commission
must have regard to all of Australia’s international obligations that are
relevant to the matter.
(3) In formulating its recommendations, the Commission must have regard to
any effect they might have on the costs of getting access to, and dispensing,
justice.
The Commission has power to do everything necessary or convenient to be
done for, or in connection with, the performance of its functions.
(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.
(3) The Commission must comply with a direction of the Attorney-General
under subsection 20(3) or 22(2).
There is to be a Board of Management of the Commission.
(1) The Board’s function is to manage the Commission and, in
particular, ensure that it performs its functions effectively and
economically.
(2) The Board has power to do everything necessary or convenient to be
done for, or in connection with, the performance of its functions.
(3) Anything done by the Board in the Commission’s name, or on its
behalf, is taken to have been done by the Commission.
The Board consists of:
(a) the President; and
(b) the Deputy President; and
(c) the other full-time members of the Commission.
(1) The President must convene such meetings of the Board as he or she
thinks necessary for the efficient performance of its function.
(2) The President must convene a meeting on receiving a written request to
do so signed by at least 2 other Board members.
(3) The President must preside at all meetings at which he or she is
present.
(4) If the President is not present at a meeting, the Deputy President
must preside.
(5) If the President and the Deputy President are not present at a
meeting, the Board members who are present must elect one of their number to
preside.
(6) A majority of Board members constitutes a quorum for the purposes of a
meeting of the Board.
(7) Questions arising at a meeting must be determined by a majority of
votes of the Board 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.
The Board may regulate proceedings at its meetings as it thinks fit. It
must keep minutes of those proceedings.
(1) The Board may, by resolution, delegate all or any of its powers to one
of its members.
(2) The delegate is, in the exercise of a delegated power, subject to the
Board’s directions.
(3) A delegation of a power:
(a) may be revoked by resolution of the Board, whether or not constituted
by the same people that constituted it when the power was delegated;
and
(b) continues in force despite any change in the Board’s
membership.
(1) A Board member who has a direct or indirect pecuniary interest in a
matter that is being considered, or is about to be considered, by the Board must
disclose the nature of the interest at a meeting of the Board.
(2) The disclosure must be made as soon as possible after the relevant
facts have come to the member’s knowledge, and must be recorded in the
minutes of the meeting.
(3) Unless the Board or the Attorney-General otherwise determines, the
member:
(a) must not be present during any deliberation by the Board on the
matter; and
(b) must not take part in any decision of the Board on the
matter.
(4) For the purposes of any determination being made under subsection (3),
a member who has a direct or indirect pecuniary interest in the matter to which
the disclosure relates:
(a) must not be present during any deliberation by the Board on whether to
make the determination; and
(b) must not take part in making the determination.
(1) The President is the Chief Executive Officer of the Commission and is,
under the Board, responsible for the management of the Commission.
(2) Anything done in the Commission’s name, or on its behalf, by the
President when acting as its Chief Executive Officer and in accordance with the
Board’s directions, is taken to have been done by the
Commission.
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.
(1) The President must convene such meetings of the Commission as he or
she thinks necessary for the efficient performance of its functions.
(2) The President must convene a meeting on receiving a written request to
do so signed by at least 3 other members.
(3) The President must preside at all meetings at which he or she is
present.
(4) If the President is not present at a meeting, the Deputy President
must preside.
(5) If the President and the Deputy President are not present at a
meeting, the members who are present must elect one of their number to
preside.
(6) 3 members constitute a quorum for the purposes of a meeting.
(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.
The Commission may regulate proceedings at its meetings as it thinks fit.
It must keep minutes of those proceedings.
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.
(1) A member who has a direct or indirect pecuniary interest in a
matter that is being considered, or is about to be considered, by the Commission
must disclose the nature of the interest at a meeting of the
Commission.
(2) The disclosure must be made as soon as possible after
the relevant facts have come to the member’s knowledge, and must be
recorded in the minutes of the meeting.
(3) Unless the Commission or the Attorney-General otherwise
determines, the member:
(a) must not be present during any deliberation by the Commission on the
matter; and
(b) must not take part in any decision of the Commission on the
matter.
(4) For the purposes of any determination being made under
subsection (3), a member who has a direct or indirect pecuniary interest in the
matter to which the disclosure relates:
(a) must not be present during any deliberation by the Commission on
whether to make the determination; and
(b) must not take part in making the determination.
(5) In this section:
Commission includes a Division of the Commission
member includes a member who is a member of a
Division.
(1) The Commission may establish a Division of the Commission for the
purposes of a reference.
(2) A Division must comprise at least 3 members.
(3) If neither the President nor the Deputy President is a member of a
Division, the Commission must nominate a member who is to preside at meetings of
the Division.
(4) A Division is taken to be the Commission for the purposes of
performing the Commission’s functions in relation to the reference for
which the Division is established.
(1) A meeting of a Division must be convened by:
(a) the President; or
(b) if the President is not a member of the Division—by the Deputy
President; or
(c) if neither the President nor the Deputy President is a member of the
Division—by the person nominated under subsection 40(3).
(2) The person responsible for convening the meetings of a Division must
preside at all meetings of it at which he or she is present.
(3) If the person referred to in subsection (2) is not present at a
meeting, the members who are present must elect one of their number to
preside.
(4) 2 members constitute a quorum for the purposes of a meeting.
(5) Questions arising at a meeting must be determined by a majority of the
votes of the members present and voting.
(6) The member presiding at a meeting has a deliberative vote.
(7) If more than 2 members are present at a meeting and there is an
equality of votes, the presiding member also has a casting vote.
(8) If:
(a) only 2 members are present at a meeting; and
(b) they differ on a question arising at the meeting;
the presiding member must adjourn the determination of the question to a
meeting at which all members of the Division are present.
A Division may regulate proceedings at its meetings as it thinks fit. It
must keep minutes of those proceedings.
(1) The President may, on the Commission’s behalf and with the
Attorney-General’s approval, appoint as staff of the Commission such
persons as the President thinks necessary for the purposes of this
Act.
(2) The terms and conditions of employment of the Commission’s staff
are to be determined by the Board and approved by the
Attorney-General.
(1) The Commission may engage persons with suitable qualifications and
experience as consultants to the Commission.
(2) The terms and conditions of the engagement of a person as a consultant
are to be determined by the Commission and approved by the Board.
(1) There is payable to the Commission such money as the Parliament
appropriates for the purposes of the Commission.
(2) The Minister for Finance may give directions about the amounts in
which, and the times when, money referred to in subsection (1) is to be paid to
the Commission.
(3) The Commission must prepare estimates, in such form as the
Attorney-General directs, of the Commission’s receipts and expenditure for
each financial year and, if the Attorney-General so directs, for any other
period specified by the Attorney-General.
(4) The Commission must submit the estimates to the Attorney-General not
later than the date directed by the Attorney-General.
(5) The Commission must not expend its money except in accordance with
estimates of expenditure approved by the Attorney-General.
The Commission must not, without the Attorney-General’s
approval:
(a) acquire any property, right or privilege for a consideration that is
more than $250,000 in amount or value or, if a higher amount is prescribed, the
higher amount; or
(b) dispose of any property, right or privilege if the amount or value of
the consideration for the disposal, or the value of the property, right or
privilege, is more than $250,000 or, if a higher amount is prescribed, the
higher amount; or
(c) enter into a contract for the construction of a building for the
Commission under which the Commission is to pay an amount of more than $250,000
or, if a higher amount is prescribed, the higher amount; or
(d) enter into a lease of land for longer than 10 years.
The Commission’s money must only be applied:
(a) in the discharge of its obligations and liabilities arising under this
Act; and
(b) in the payment of any salary or allowances payable under this
Act.
It is hereby declared that the Commission is a public authority to which
Division 3 of Part XI of the Audit Act 1901 applies.
The Commission is not subject to taxation under any law of the
Commonwealth or of a State or Territory.
(1) An action or other proceeding for damages does not lie against the
Commission in relation to anything done, or not done, in good faith:
(a) in the performance, or purported performance, of any of the
Commission’s functions; or
(b) in the performance, or purported performance, of any of its
powers.
(2) An action or other proceeding for damages does not lie against a
person who is a member, or member of the staff, of the Commission in relation to
anything done, or not done, by the person in good faith in the performance, or
purported performance, of his or her duties as such a member, or member of the
staff.
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.