Solicitor-General Act 1983
An Act to provide for the appointment of the Solicitor-General and the performance and exercise by the Solicitor-General of certain functions and powers, and to provide for the conditions of service of the Solicitor-General and for related matters
[Royal Assent 29 June 1983]
Be it enacted by His Excellency the Governor of Tasmania, by and with the advice and consent of the Legislative Council and House of Assembly, in Parliament assembled, as follows:
This Act may be cited as the Solicitor-General Act 1983 .
This Act shall commence on the day on which it receives the Royal Assent.
(1) [Section 3 Subsection (1) amended by No. 68 of 1994, s. 3 and Sched. 1 ]In this Act, except in so far as the context or subject-matter otherwise indicates or requires –[Section 3 Subsection (1) amended by No. 91 of 1999, s. 69, Applied:15 Dec 1999] [Section 3 Subsection (1) amended by No. 54 of 2016, s. 99, Applied:31 Mar 2017][Section 3 Subsection (1) amended by No. 54 of 2016, s. 99, Applied:31 Mar 2017] accumulation scheme, in relation to a Solicitor-General, means the default fund, within the meaning of the Public Sector Superannuation Reform Act 2016 ,in relation to which the Solicitor-General is a relevant employee within the meaning of section 21 of that Act;[Section 3 Subsection (1) amended by No. 17 of 2005, Sched. 1, Applied:10 Jun 2005] age of retirement means the age of 72 years;[Section 3 Subsection (1) amended by No. 66 of 2007, Sched. 1, Applied:31 Dec 2008][Section 3 Subsection (1) amended by No. 66 of 2007, Sched. 1, Applied:31 Dec 2008] barrister means a barrister within the meaning of the Legal Profession Act 2007 ;commencement day means the day on which this Act receives the royal assent;[Section 3 Subsection (1) amended by No. 91 of 1999, s. 69, Applied:15 Dec 1999] [Section 3 Subsection (1) amended by No. 103 of 2000, Sched. 1, Applied:13 Dec 2000][Section 3 Subsection (1) amended by No. 103 of 2000, Sched. 1, Applied:13 Dec 2000] complying superannuation scheme means a complying superannuation fund as provided by the law of the Commonwealth;functions includes duties;Judges Pension Fund means the Fund established under section 9 of the Judges' Contributory Pensions Act 1968 ;[Section 3 Subsection (1) amended by No. 66 of 2007, Sched. 1, Applied:31 Dec 2008] practitioner means an Australian legal practitioner;power includes an authority;[Section 3 Subsection (1) amended by No. 91 of 1999, s. 69, Applied:15 Dec 1999] [Section 3 Subsection (1) amended by No. 54 of 2016, s. 99, Applied:31 Mar 2017] [Section 3 Subsection (1) amended by No. 18 of 1999, s. 44, Applied:14 May 1999][Section 3 Subsection (1) amended by No. 18 of 1999, s. 44, Applied:14 May 1999] regulations means regulations made and in force under this Act;[Section 3 Subsection (1) amended by No. 65 of 2005, Sched. 1, Applied:15 Dec 2005] RSA means a Retirement Savings Account within the meaning of the Retirement Savings Accounts Act 1997 of the Commonwealth;[Section 3 Subsection (1) amended by No. 91 of 1999, s. 69, Applied:15 Dec 1999] Secretary means the Secretary of the Department;[Section 3 Subsection (1) amended by No. 45 of 2003, Sched. 1, Applied:01 Jan 2004] spouse includes the person with whom a person is, or was at the time of his or her death, in a significant relationship, within the meaning of the Relationships Act 2003 ;[Section 3 Subsection (1) amended by No. 18 of 1999, s. 44, Applied:14 May 1999] surcharge liability means liability for tax or interest imposed under the law of the Commonwealth arising from an entitlement to a pension under Schedule 1 ;[Section 3 Subsection (1) amended by No. 91 of 1999, s. 69, Applied:15 Dec 1999] transfer day means the day specified in a notice under section 7(5) of the Public Sector Superannuation Reform Act 1999 ;[Section 3 Subsection (1) amended by No. 45 of 2003, Sched. 1, Applied:01 Jan 2004] [Section 3 Subsection (1) amended by No. 18 of 1999, s. 44, Applied:14 May 1999] [Section 3 Subsection (1) amended by No. 45 of 2003, Sched. 1, Applied:01 Jan 2004](2) In this Act, a reference to the Solicitor-General is a reference to the holder (if any) of the office established by section 4 (1) and includes a reference to any barrister or practitioner appointed to act for the Solicitor-General during his illness or absence.
4. Office of Solicitor-General; appointment of Solicitor-General
(1) There is established by this Act the office of Solicitor-General of Tasmania.(2) Subject to this section, the Governor may appoint a person qualified by virtue of subsection (3) to hold the office of Solicitor-General.(3) [Section 4 Subsection (3) amended by No. 39 of 2015, s. 11, Applied:13 Oct 2015] [Section 4 Subsection (3) substituted by No. 66 of 2007, Sched. 1, Applied:31 Dec 2008] A person is qualified for appointment under this section if, but only if, he or she is an Australian lawyer of not less than 7 years' standing as a practitioner and either –(a) [Section 4 Subsection (3) amended by No. 39 of 2015, s. 11, Applied:13 Oct 2015] he or she has not previously been appointed under subsection (2) to hold the office of Solicitor-General; or(b) [Section 4 Subsection (3) amended by No. 39 of 2015, s. 11, Applied:13 Oct 2015] he or she has previously been appointed under subsection (2) to hold the office of Solicitor-General and subsection (3B) applies in relation to his or her appointment.(3A) [Section 4 Subsection (3A) inserted by No. 39 of 2015, s. 11, Applied:13 Oct 2015] Subject to this Act, a person appointed to hold the office of Solicitor-General holds office for a period of 10 years.(3B) [Section 4 Subsection (3B) inserted by No. 39 of 2015, s. 11, Applied:13 Oct 2015] Despite subsection (3A) , a person who has previously been appointed to hold the office of Solicitor-General may be appointed to hold that office for a further period, of not more than 10 years, that is specified in the instrument of appointment and is to begin immediately after the term of his or her previous appointment ends.(4) [Section 4 Subsection (4) amended by No. 86 of 2000, Sched. 1, Applied:01 May 2001] [Section 4 Subsection (4) amended by No. 29 of 1984, s. 3 and Sched. 1 ]Except as provided by subsection (5) , the State Service Act 2000 does not apply to or in relation to the office of Solicitor-General or to a person holding that office.(5) [Section 4 Subsection (5) amended by No. 86 of 2000, Sched. 1, Applied:01 May 2001] [Section 4 Subsection (5) amended by No. 29 of 1984, s. 3 and Sched. 1 ]If for any reason the person holding office as Solicitor-General is unable to perform the functions of that office or that office is for the time being vacant, the Governor may appoint a person (including a State Service officer or State Service employee) to act in that office until the Solicitor-General is able to resume his duties as such or, as the case may be, until the vacancy is filled.(6) The person holding the office of Solicitor-General under the Public Service Act 1973 immediately before the commencement day shall be deemed to have been appointed by the Governor under subsection (2) and on that day his service as an employee within the meaning of the Superannuation Act 1938 shall be deemed to be terminated for the purposes of that Act.
5. Terms and conditions of service of Solicitor-General
[Section 5 Subsection (1) amended by No. 45 of 1996, s. 5 ](1) [Section 5 Subsection (1) amended by No. 29 of 1984, s. 3 and Sched. 1 ]The Solicitor-General is entitled to be paid –(a) for the period 26 June 1995 to 30 September 1996, both days inclusive, a salary at the rate of 90% of the salary payable to a puisne judge of the Supreme Court of Tasmania for the same period; and(ab) after 30 September 1996, a salary equivalent to the salary payable to a puisne judge of the Supreme Court of Tasmania; and(b) [Section 5 Subsection (1) amended by No. 86 of 2000, Sched. 1, Applied:01 May 2001] such travelling and other allowances as the Governor from time to time determines in respect of him and, if there is for the time being no such determination, such travelling and other allowances as are applicable to a person who is a Head of a State Service Agency.(1A) [Section 5 Subsection (1A) inserted by No. 91 of 1999, s. 70, Applied:15 Dec 1999] [Section 5 Subsection (1A) substituted by No. 52 of 2002, s. 23, Applied:27 Nov 2002] Notwithstanding subsection (1) , the Solicitor-General may elect, in writing to the Secretary, at any time but not more than once in a period of one year, that the salary determined in accordance with subsection (1)(ab) may be provided –(a) in part by the payment of salary to the Solicitor-General; and(b) [Section 5 Subsection (1A) amended by No. 65 of 2005, Sched. 1, Applied:15 Dec 2005] in part by the payment of employer superannuation contributions to an RSA or a complying superannuation scheme, which may include the accumulation scheme.(1B) [Section 5 Subsection (1B) inserted by No. 91 of 1999, s. 70, Applied:15 Dec 1999] If the Solicitor-General elects to sacrifice some or all of his or her salary under subsection (1A) –(a) the election has effect from the date of the election or from a later date specified in the election for that purpose; and(b) the Solicitor-General is taken, for any purpose related to superannuation, to have received the salary determined in accordance with subsection (1)(ab) , notwithstanding the salary sacrifice.(2) [Section 5 Subsection (2) amended by No. 68 of 1994, s. 3 and Sched. 1 ]A Solicitor-General is an employee for the purposes of the Long Service Leave (State Employees) Act 1994 .(3) [Section 5 Subsection (3) amended by No. 86 of 2000, Sched. 1, Applied:01 May 2001] [Section 5 Subsection (3) amended by No. 29 of 1984, s. 3 and Sched. 1 ]The terms and conditions of employment of a Solicitor-General (other than those to which subsections (1) and (2) relate) shall be such as the Governor from time to time determines in respect of him and, if there is for the time being no such determination, shall be those applicable to a State Service employee.(4) [Section 5 Subsection (4) amended by No. 28 of 2011, s. 48, Applied:31 Oct 2011] [Section 5 Subsection (4) inserted by No. 45 of 1996, s. 5 ]The Solicitor-General is a worker for the purposes of the Workers Rehabilitation and Compensation Act 1988 and the Asbestos-Related Diseases (Occupational Exposure) Compensation Act 2011 .(5) [Section 5 Subsection (5) amended by No. 4 of 2017, Sched. 1, Applied:01 Jul 2019] [Section 5 Subsection (5) inserted by No. 45 of 1996, s. 5 ]The Solicitor-General is entitled to be paid out of the Public Account.(6) [Section 5 Subsection (6) amended by No. 4 of 2017, Sched. 1, Applied:01 Jul 2019] [Section 5 Subsection (6) inserted by No. 45 of 1996, s. 5 ]Any allowance payable to the Solicitor-General under this Act is to be paid out of the Public Account.(7) [Section 5 Subsection (7) amended by No. 4 of 2017, Sched. 1, Applied:01 Jul 2019] [Section 5 Subsection (7) inserted by No. 45 of 1996, s. 5 ]The Public Account is appropriated to the extent necessary for the purposes of subsections (5) and (6) .
6. Vacation of office of Solicitor-General
[Section 6 Substituted by No. 39 of 2015, s. 12, Applied:13 Oct 2015](1) A person holding the office of Solicitor-General vacates the office –(a) at the end of the term of his or her appointment; or(b) on his or her resignation from that office under subsection (2) ; or(c) on the revocation of his or her appointment to the office under section 6F(2)(b) .(2) A person holding the office of Solicitor-General may at any time resign his or her office by notice in writing delivered to the Governor.
6A. Suspension from office of Solicitor-General
[Section 6A Inserted by No. 39 of 2015, s. 12, Applied:13 Oct 2015](1) The Governor may suspend from office a person holding the office of Solicitor-General if the Governor is satisfied the person –(a) except by reason of temporary illness, is, by reason of disability or infirmity, incapable of performing the functions of that office; or(b) has become bankrupt, applied to take or has taken advantage of any law relating to bankruptcy or insolvent debtors, compounded with his or her creditors, or made an assignment of his or her remuneration or estate for their benefit; or(c) has been convicted in Tasmania of –or has been convicted of a crime, or of an offence, which would, if committed in Tasmania, be a crime, or be an offence punishable by imprisonment for a term of 12 months or more.(i) a crime; or(ii) an offence that is punishable by imprisonment for a term of 12 months or more –(2) The Governor may suspend from office a person holding the office of Solicitor-General if the Governor is satisfied the person has been charged with –(a) a crime; or(b) an offence that is punishable by imprisonment for a term of 12 months or more; or(c) a crime, or an offence, which would, if committed in Tasmania, be a crime, or be an offence punishable by imprisonment for a term of 12 months or more.(3) The Governor may suspend from office a person holding the office of Solicitor-General if the Governor is satisfied the person has engaged in –(a) misconduct in office, including by virtue of contravening section 10 ; or(b) misbehaviour that brings the office into disrepute.
6B. Minister to lay before each House of Parliament statement in relation to suspension
[Section 6B Inserted by No. 39 of 2015, s. 12, Applied:13 Oct 2015] If a person has been suspended from office under section 6A , the Minister must cause a statement setting out the grounds for the suspension to be laid before each House of Parliament during the first 7 sitting-days of that House following the suspension or a longer period allowed by resolution of the House of Parliament before which it is laid.
6C. House of Parliament may confirm or revoke suspension for misconduct or misbehaviour
[Section 6C Inserted by No. 39 of 2015, s. 12, Applied:13 Oct 2015](1) If a person has been suspended from office under section 6A(3) , a House of Parliament, within 30 sitting-days after the day on which a statement has been laid before the House under section 6B or a longer period allowed by resolution of the House of Parliament, may pass a resolution –(a) confirming the suspension; or(b) revoking the suspension.(2) If both Houses of Parliament pass a resolution under subsection (1)(b) revoking the suspension of a person from the office of Solicitor-General, the suspension of the person from the office of Solicitor-General is revoked on and from the day on which the resolution is passed by both the Houses.
6D. Governor may revoke or vary suspension of person from office of Solicitor-General
[Section 6D Inserted by No. 39 of 2015, s. 12, Applied:13 Oct 2015](1) The Governor may revoke or vary a suspension imposed under section 6A .(2) If the Governor has, under subsection (1) , revoked or varied a suspension, the Minister must cause a statement setting out the grounds for the revocation or variation to be laid before each House of Parliament during the first 7 sitting-days of that House following the revocation or variation or a longer period allowed by resolution of the House of Parliament before which it is laid.(3) If a suspension has been revoked or varied under subsection (1) , a House of Parliament, within 30 sitting-days after the day on which a statement has been laid before the House under subsection (2) or a longer period allowed by resolution of the House of Parliament, may pass a resolution –(a) confirming the revocation or variation of the suspension; or(b) revoking the revocation or variation of the suspension.(4) If both Houses of Parliament pass a resolution under subsection (3) confirming the revocation or variation of a suspension, the suspension is revoked or varied, respectively, on and from the day on which the resolution is passed by both the Houses.
6E. Request for revocation of appointment
[Section 6E Inserted by No. 39 of 2015, s. 12, Applied:13 Oct 2015] The Governor may cause to be laid before both Houses of Parliament a statement requesting the Houses of Parliament to revoke the appointment of a person to the office of Solicitor-General on the grounds for suspension, referred to in section 6A(1) or (3) , that are specified in the statement, if –(a) the Governor is satisfied the person may be suspended from the office of Solicitor-General on the grounds, referred to in section 6A(1) or (3) , specified in the statement; and(b) the Governor has suspended the person from office under section 6A on any grounds referred to in that section, whether or not they are the same grounds as the grounds to which the statement relates; and(c) the statement required by section 6B to be laid before both Houses of Parliament in relation to the suspension of the person from the office of Solicitor-General has been laid before each House; and(d) where the person has been suspended from office under section 6A(3) – the suspension has been confirmed under section 6C(1)(a) .
6F. House of Parliament may revoke appointment or suspension
[Section 6F Inserted by No. 39 of 2015, s. 12, Applied:13 Oct 2015](1) A House of Parliament, after 10 sitting-days, or a longer period allowed by resolution of the House, after the day on which a statement in relation to a person has been laid before the House under section 6E , may resolve –(a) to refuse the request specified in the statement and, if the suspension of the person from office has not been revoked, to revoke the suspension; or(b) to revoke the appointment of the person to the office of Solicitor-General.(2) If both Houses have resolved –on and from the day on which the resolution is passed by both Houses.(a) under subsection (1)(a) to revoke the suspension of a person from the office of Solicitor-General, the suspension of the person from the office of Solicitor-General is revoked; or(b) under subsection (1)(b) to revoke the appointment of a person to the office of Solicitor-General, the appointment of the person to the office of Solicitor-General is revoked –
6G. Payment of person suspended from office
[Section 6G Inserted by No. 39 of 2015, s. 12, Applied:13 Oct 2015](1) If a person is suspended from the office of Solicitor-General under section 6A , the Governor is to specify in the instrument of suspension the proportion (which may be all, none or part) of the salary of the Solicitor-General to which the person is to be entitled in respect of the period of suspension.(2) If a person is suspended from the office of Solicitor-General under section 6A , the person is not entitled, in respect of the period of suspension, to any more of the salary of the Solicitor-General, to which, but for the suspension, or any variation of the suspension, the person would be entitled under this Act, than the proportion of that salary that is specified in the instrument of suspension, as so varied, if at all.(3) Despite subsection (2) , if the suspension of a person from the office of Solicitor-General for a period under section 6A is revoked under section 6C(2) , 6D(1) or 6F(2)(a) , the person is entitled to the amount of the salary in respect of the period to which, but for the suspension of the person from the office, the person would be entitled under this Act.
7. Functions of Solicitor-General
A person holding the office of Solicitor-General has and shall exercise the following functions:(a) to act as counsel for the Crown in right of Tasmania or for any other person for whom the Attorney-General directs or requests him to act;(b) [Section 7 Amended by No. 39 of 2015, s. 13, Applied:13 Oct 2015] to perform such other duties ordinarily performed by legal practitioners as the Attorney-General directs or requests him to perform; and(c) to perform such duties (if any) as are imposed on him by or under any other Act.
8. Delegation of functions, &c., by Attorney-General
(1) Subject to this section, the Attorney-General may, by instrument in writing, delegate to the Solicitor-General responsibility for the performance or exercise of such of the functions and powers (other than this power of delegation) which may be performed or exercised by the Attorney-General under the laws of Tasmania as may be specified in the instrument of delegation and may, by similar instrument, revoke any such delegation either wholly or in part.(2) Any function or power, the performance or exercise of which is delegated under subsection (1) , may, while the delegation remains unrevoked, be performed or exercised from time to time by the Solicitor-General in accordance with the terms of the delegation.(3) A delegation under subsection (1) may be made subject to such conditions or such limitations as to the performance or exercise of any of the specified functions or powers delegated or as to time or circumstance as may be specified in the instrument of delegation.(4) Notwithstanding any delegation under subsection (1) , the Attorney-General may continue to perform or exercise all or any of the functions or powers that are delegated.(5) Subsection (1) does not authorize the delegation of a function or power where another enactment provides or contemplates that the function or power may be delegated to the holder of an office other than that of Solicitor-General.(6) Any act or thing done by or to the Solicitor-General when acting in the exercise of a delegation under this section and within the terms of the delegation shall have the same effect as if the act or thing had been done by or to the Attorney-General.(7) Where any function or power is performed or exercised by the Solicitor-General in accordance with a delegation under this section, and its performance or exercise depends on the opinion, belief, or state of mind of the Attorney-General, that function or power may be performed or exercised by the Solicitor-General on his own opinion, belief, or state of mind.(8) No person shall be concerned to see or to inquire whether any act, matter, or thing done or performed by the Solicitor-General when purporting to act in accordance with a delegation under this section is or is not authorized by that delegation.
9. Pension rights of Solicitor-General appointed before 1 July 1999
[Section 9 Substituted by No. 91 of 1999, s. 71, Applied:15 Dec 1999] Schedule 1 has effect only in respect of a person appointed as Solicitor-General before 1 July 1999.
9A. Superannuation entitlements of Solicitor-General appointed after 1 July 1999
[Section 9A Inserted by No. 91 of 1999, s. 71, Applied:15 Dec 1999][Section 9B Amended by No. 60 of 2009, s. 87, Applied:01 Oct 2010] [Section 9B Inserted by No. 91 of 1999, s. 71, Applied:15 Dec 1999] [Section 9B Repealed by No. 54 of 2016, s. 101, Applied:31 Mar 2017] [Section 9C Amended by No. 45 of 2003, Sched. 1, Applied:01 Jan 2004] [Section 9C Inserted by No. 91 of 1999, s. 71, Applied:15 Dec 1999] [Section 9C Repealed by No. 54 of 2016, s. 101, Applied:31 Mar 2017](1) This section applies –(a) [Section 9A Subsection (1) amended by No. 65 of 2005, Sched. 1, Applied:15 Dec 2005] [Section 9A Subsection (1) amended by No. 54 of 2016, s. 100, Applied:31 Mar 2017] in respect of a person appointed as Solicitor-General after 1 July 1999 who was not, immediately before his or her appointment, a contributor to the contributory scheme provided or continued by regulations under the Public Sector Superannuation Reform Act 2016 ; and(b) to a person who makes an election under section 12(3) of this Act.(2) [Section 9A Subsection (2) omitted by No. 65 of 2005, Sched. 1, Applied:15 Dec 2005] . . . . . . . .(3) [Section 9A Subsection (3) amended by No. 6 of 2013, s. 14, Applied:13 May 2013] [Section 9A Subsection (3) substituted by No. 54 of 2016, s. 100, Applied:31 Mar 2017] A person to whom this section applies is an employee for the purposes of the Public Sector Superannuation Reform Act 2016 .(4) [Section 9A Subsection (4) amended by No. 65 of 2005, Sched. 1, Applied:15 Dec 2005] [Section 9A Subsection (4) omitted by No. 54 of 2016, s. 100, Applied:31 Mar 2017] . . . . . . . .(5) [Section 9A Subsection (5) amended by No. 65 of 2005, Sched. 1, Applied:15 Dec 2005] [Section 9A Subsection (5) omitted by No. 54 of 2016, s. 100, Applied:31 Mar 2017] . . . . . . . .(6) [Section 9A Subsection (6) amended by No. 6 of 2013, s. 14, Applied:13 May 2013] [Section 9A Subsection (6) omitted by No. 54 of 2016, s. 100, Applied:31 Mar 2017] . . . . . . . .(6A) [Section 9A Subsection (6A) amended by No. 6 of 2013, s. 14, Applied:13 May 2013] [Section 9A Subsection (6A) inserted by No. 65 of 2005, Sched. 1, Applied:15 Dec 2005] [Section 9A Subsection (6A) omitted by No. 54 of 2016, s. 100, Applied:31 Mar 2017] . . . . . . . .(7) [Section 9A Subsection (7) omitted by No. 54 of 2016, s. 100, Applied:31 Mar 2017] . . . . . . . .(8) [Section 9A Subsection (8) inserted by No. 103 of 2000, Sched. 1, Applied:13 Dec 2000] [Section 9A Subsection (8) omitted by No. 65 of 2005, Sched. 1, Applied:15 Dec 2005] . . . . . . . .
10. Solicitor-General not to engage in private practice
(1) [Section 10 Subsection (1) amended by No. 66 of 2007, Sched. 1, Applied:31 Dec 2008] Subject to subsection (2) , a person holding the office of Solicitor-General shall not engage in the practice of his profession as a practitioner or in any other employment otherwise than in the course of performing the duties or exercising the powers of his office.(2) Subsection (1) does not preclude a person referred to in that subsection from –(a) holding an office that, by or under a law of Tasmania, is to be held by the holder of the office of Solicitor-General; or(b) holding an office or engaging in employment where he is expressly authorized by the Attorney-General in writing to do so.
(1) The Solicitor-General shall, within 3 months after the relevant day, prepare and submit to the Attorney-General a report with respect to the performance and exercise by him, and by any previous holder of the office of Solicitor-General, of the functions and powers of the holder of that office during the relevant period.(2) In subsection (1) –relevant day means –(a) the 30th June next but one after the commencement day; and(b) each subsequent 30th June;relevant period means–(a) the period beginning with the commencement day and ending with the 30th June next but one after that day; and(b) the period of 12 months ending on each subsequent 30th June.(3) The Attorney-General shall cause a copy of a report submitted to him under subsection (1) to be laid on the table of each House of Parliament within the first 10 sitting days after he receives the report.
12. Accruing and accrued rights of public servant, &c., who is appointed as Solicitor-General
(1) [Section 12 Subsection (1) amended by No. 17 of 1996, Applied:14 Jan 2011] [Section 12 Subsection (1) amended by No. 51 of 1985, s. 4 and Sched. 2, Pt. II ]Subject to subsection (2) , where a person who is appointed as Solicitor-General was–a person to whom this section applies, he shall retain any rights accrued or accruing to him as such a person and shall be entitled to receive any long-service leave or payment in lieu of long-service leave as if he had continued to be such a person, and his service as Solicitor-General shall be deemed to be service as such a person for the purposes of any law by which those rights are, or that entitlement is, conferred or determined.(a) except in the case of a person referred to in paragraph (b) – immediately before his appointment under section 4 (2) ; or(b) in the case of a person to whom section 4 (6) applies– immediately before the commencement day–(2) Subsection (1) does not apply to or in relation to rights accrued or accruing under a superannuation scheme.(3) [Section 12 Subsection (3) amended by No. 54 of 2016, s. 102, Applied:31 Mar 2017] [Section 12 Subsection (3) substituted by No. 91 of 1999, s. 72, Applied:15 Dec 1999] Where a person to whom this section applies is appointed as Solicitor-General and was, immediately before his or her appointment, a contributor to the contributory scheme within the meaning of the Public Sector Superannuation Reform Act 2016 , that person remains a member of that scheme unless he or she elects, in writing to the Secretary within one month after his or her appointment, to become a member of a default fund, within the meaning of that Act, or an RSA or other complying superannuation scheme.(4) [Section 12 Subsection (4) omitted by No. 91 of 1999, s. 72, Applied:15 Dec 1999] . . . . . . . .(5) [Section 12 Subsection (5) amended by No. 29 of 1984, s. 3 and Sched. 1 ]For the purposes of this section –a person to whom this section applies means a person who was at the relevant time –(a) [Section 12 Subsection (5) amended by No. 86 of 2000, Sched. 1, Applied:01 May 2001] a State Service officer or State Service employee;(b) an officer or employee of a State authority;(c) [Section 12 Subsection (5) amended by No. 86 of 2000, Sched. 1, Applied:01 May 2001] an officer who holds office under an Act other than this Act or the State Service Act 2000 ; or(d) a person in respect of whom provision is or was made by an Act that he retain any right accrued or accruing to him as an officer or employee or in any other official capacity;[Section 12 Subsection (5) amended by No. 86 of 2000, Sched. 1, Applied:01 May 2001] State authority means a body or authority, whether incorporated or not, which is established or constituted by or under an Act or under the royal prerogative, being a body or authority which, or of which, the governing authority, wholly or partly, comprises a person or persons appointed by the Governor, a Minister, or another State authority, but does not include a Government department within the meaning of the State Service Act 2000 ;superannuation scheme means a scheme, fund, or arrangement which is established under an Act and under which any pension or retirement benefits is or are provided.
[Section 12A Inserted by No. 43 of 1986, s. 4 ](1) [Section 12A Subsection (1) amended by No. 86 of 2000, Sched. 1, Applied:01 May 2001] Subject to and in accordance with the State Service Act 2000 , such persons may be appointed or employed as may be necessary to enable the Solicitor-General to perform his functions under this Act.(2) [Section 12A Subsection (2) amended by No. 5 of 1990, s. 3 and Sched. 1 ]On being requested by the Solicitor-General to do so, the Secretary of the Department may –as may reasonably be necessary for the purposes of assisting the Solicitor-General in the performance of his functions.(a) [Section 12A Subsection (2) amended by No. 86 of 2000, Sched. 1, Applied:01 May 2001] provide such State Service officers and State Service employees employed in the Department; or(b) procure the services of such other persons –
(1) The Governor may make regulations for the purposes of this Act.(2) Without limiting the generality of subsection (1) , regulations under that subsection may be made for or with respect to –(a) prescribing the conditions and requirements to be fulfilled before a person may become a contributor under Schedule 1 ;(b) providing for the making of supplementary contributions under Schedule 1 and prescribing the circumstances in which such contributions are required to be made; and(c) providing for the transfer to the Judges Pension Fund of contributions that may have been made under a superannuation scheme by a person appointed to be Solicitor-General under this Act.(3) Where any regulation under this section imposes any new or additional liability or obligation on a person appointed to the office of Solicitor-General, that regulation shall not apply to or in relation to any person appointed to that office before the date on which the regulation was made or the date on which the regulation took effect, whichever date is the later.(4) [Section 13 Subsection (4) amended by No. 5 of 2004, Sched. 1, Applied:09 Jun 2004] For the purposes of subsection (2)(c) ,superannuation scheme has the meaning assigned to that expression by section 12 (5) .
14. Application of amendments made by Law Officers (Miscellaneous Amendments) Act 2015
[Section 14 Inserted by No. 39 of 2015, s. 14, Applied:13 Oct 2015](1) In this section –amendment Act means the Law Officers (Miscellaneous Amendments) Act 2015;amendment day means the day on which the amendment Act commenced.(2) Apart from this section, the amendments to this Act made by the amendment Act do not apply in relation to the person who, immediately before the amendment day, held the office of Solicitor-General.(3) Nothing in this Act is to be taken to prevent a person, by reason only that the person has acted, or is acting, as Solicitor-General, from holding, or from being appointed to, the office of Solicitor-General.
SCHEDULE 1 - Pension Rights, &c.
PART 1 - [Part 1 of Schedule 1 Amended by No. 55 of 2003, s. 13, Applied:25 Sep 2003] Contributions and Pension Rates
1. Contributions[Schedule 1 Clause 1 amended by No. 2 of 1988, s. 4 ](1) A person holding the office of Solicitor-General may, within 1 month after being appointed to that office, elect to become a contributor for the purposes of this Schedule, and, where he so elects and complies with such conditions and requirements (if any) as may be prescribed in the regulations, he shall thereafter pay contributions of amounts equal to 5 per cent of his salary and, where so prescribed, such supplementary contributions of such amounts (if any) as may be prescribed in, or determined in accordance with, the regulations.(2) Contributions to be paid under subsection ( 1 ) shall be paid to the Treasurer in such manner and at such times as the Treasurer determines.(3) Contributions paid under this clause and sums paid under clause 7 (2) shall be credited to the Judges Pension Fund.
2. Pension to Solicitor-General, &c., on retirement[Schedule 1 Clause 2 amended by No. 51 of 1985, s. 4 and Sched. 2, Pt. II ](1) Where a person holding the office of Solicitor-General has paid contributions (including any supplementary contributions) in accordance with clause 1 , he becomes entitled to the pension referred to in subclause (2) –(a) on vacating office as referred to in section 6 (1) (a) after having served as Solicitor-General for not less than 10 years;(b) on resigning his office before reaching the age of retirement after having served as Solicitor-General for not less than 15 years; or(c) on resigning his office before reaching the age of retirement or being removed from office under section 6 (3) after having served as Solicitor-General for a period less than 15 years where the Minister certifies in writing that the resignation or removal was due to disability or infirmity.(2) The pension to which a person becomes entitled under subsection (1) is a pension at the rate of one-half of the salary for the time being payable to a puisne judge.(3) In subclause (1) , a reference to a person having served as Solicitor-General includes a reference to having served as Solicitor-General before the commencement day and also includes a reference to any other service that is deemed by the regulations to be service as Solicitor-General for the purposes of this Schedule.
3. Pension payable to spouse(1) [Schedule 1 Amended by No. 45 of 2003, Sched. 1, Applied:01 Jan 2004] [Schedule 1 Amended by No. 18 of 1999, s. 45, Applied:14 May 1999] When a person holding the office of Solicitor-General dies after having paid contributions (including any supplementary contributions) in accordance with clause 1 , his or her spouse (if any) becomes entitled to the pension referred to in subclause (3) .(2) [Schedule 1 Amended by No. 18 of 1999, s. 45, Applied:14 May 1999] [Schedule 1 Amended by No. 45 of 2003, Sched. 1, Applied:01 Jan 2004] Where a former Solicitor-General who has become entitled to a pension under clause 2 dies, his or her spouse, if the marriage or significant relationship, within the meaning of the Relationships Act 2003 , existed at the time when the former Solicitor-General became so entitled, becomes entitled to a pension referred to in subclause (3) .(2A) [Schedule 1 Amended by No. 18 of 1999, s. 45, Applied:14 May 1999] Subclause (2) does not apply to a person's widow or widower if –(a) the widow or widower married the deceased person after the date on which she or he became entitled to a pension under clause 2 ; or(b) in the case of a de facto husband or wife, the de facto relationship commenced after that date.(3) [Schedule 1 Amended by No. 45 of 2003, Sched. 1, Applied:01 Jan 2004] [Schedule 1 Amended by No. 18 of 1999, s. 45, Applied:14 May 1999] The pension to which a spouse becomes entitled under subclause (1) or (2) is a pension at the rate of one-third of the salary referred to in clause 2 (2) .
4. Calculation of rates of pension(1) Where under this Schedule a person becomes entitled to a pension at the rate of a specified proportion of the salary of a puisne judge, the Treasurer shall pay to that person a pension at a rate that is equivalent to that proportion of what is for the time being the rate of that salary.(2) A pension referred to in subclause (1) accrues from day to day and is payable monthly or in such other manner as the Treasurer, with the agreement of the person concerned, may determine.(3) [Schedule 1 Amended by No. 18 of 1999, s. 45, Applied:14 May 1999] A pension payable under this Schedule is to be reduced to take account of any commutation of the pension under clause 8 or 9 .
5. Return of contributions[Schedule 1 Clause 5 amended by No. 2 of 1988, s. 4 ](1) Where a person who vacates the office of Solicitor-General (otherwise than on becoming a judge) does not become entitled to a pension under this Act, the Treasurer shall pay to him a sum equivalent to the amount of the contributions (including any supplementary contributions) paid by him under this Schedule.(2) Where a person dies while holding the office of Solicitor-General and no person becomes entitled on his death to a pension under clause 3 , the Treasurer shall pay to his legal personal representatives a sum equivalent to the amount of the contributions (including any supplementary contributions) paid by the first-mentioned person under this Schedule.
6. Pensions, &c., to be charge on Public Account[Schedule 1 Clause 6 amended by No. 2 of 1988, s. 4 ][Schedule 1 Amended by No. 4 of 2017, Sched. 1, Applied:01 Jul 2019] A pension or sum required to be paid under this Schedule by the Treasurer is a charge on the Public Account and shall be so paid without further appropriation than this clause.
7. Effect on pension rights of appointment of Solicitor-General as judge[Schedule 1 Clause 7 amended by No. 2 of 1988, s. 4 ](1) If a person who holds or has held office as Solicitor-General becomes a judge –(a) subject to subclause (2) , the period during which he held office as Solicitor-General shall, for the purposes of section 5 of the Judges' Contributory Pensions Act 1968 , be added to, and be deemed part of, his period of service as a judge; and(b) [Schedule 1 Amended by No. 45 of 2003, Sched. 1, Applied:01 Jan 2004] if, at any time when he becomes a judge he is in receipt of a pension under this Schedule by virtue of this Act, that pension ceases to be payable, but if at any such time he is not so in receipt of a pension under this Schedule, a pension does not become payable to him or his spouse by virtue of the operation of this Schedule.(2) Paragraph (a) of subclause (1) does not apply to a person who, having held office as Solicitor-General, has, after the commencement of the Solicitor-General Amendment Act 1988 , received a payment under clause 5 (1) and has not, within 1 month of becoming a judge, paid to the Treasurer a sum equal to the payment so received.
7A. Commutation of pension to lump sum by Solicitor-General or spouse[Schedule 1 Amended by No. 103 of 2000, Sched. 1, Applied:13 Dec 2000] [Schedule 1 Amended by No. 91 of 1999, s. 73, Applied:15 Dec 1999] [Schedule 1 Amended by No. 45 of 2003, Sched. 1, Applied:01 Jan 2004] The application of sections 10A, 10B, 10C and 10D of the Judges' Contributory Pensions Act 1968 extends to the commutation of a pension payable under this Act by the Solicitor-General or, if he predeceases his spouse, that spouse, as if references in those sections to a person to whom that Act applies were read as references to the Solicitor-General.
8. Commutation of pension to lump sum to pay surcharge liability[Schedule 1 Amended by No. 18 of 1999, s. 45, Applied:14 May 1999](1) Where a person ceases to hold office as Solicitor-General, he or she may, by notice in writing to the Minister, elect to commute sufficient of his or her pension to a lump sum payment in order to discharge his or her surcharge liability.(2) On receipt of the notice, the Minister must commute sufficient of the person's pension entitlement to a lump sum payment and pay it to that person to enable him or her to discharge his or her surcharge liability.(3) The Minister must determine the lump sum in accordance with the appropriate age, marital and gender factors specified for a pension determined in accordance with the Retirement Benefits Act 1993 .
9. Death of Solicitor-General with surcharge liability[Schedule 1 Amended by No. 45 of 2003, Applied:01 Jan 2004] [Schedule 1 Amended by No. 18 of 1999, s. 45, Applied:14 May 1999] If a person holding office as Solicitor-General dies with an outstanding surcharge liability, his or her spouse may elect to commute her or his pension entitlement to a lump sum payment in order to discharge any surcharge liability, in which case clause 8 applies to that election as if it were an election under that clause.
10. Increases in annual pension[Schedule 1 Amended by No. 91 of 1999, s. 73, Applied:15 Dec 1999] [Schedule 1 Amended by No. 18 of 1999, s. 45, Applied:14 May 1999] If a part of a pension payable under this Schedule is commuted, any future increase in the annual pension entitlement as the result of an increase in the current Solicitor-General's salary is to be calculated in accordance with the following formula:where –P is the new pension payable to a person in receipt of a pension payable under this Act;RP is the pension payable to a person in receipt of a pension payable under this Act immediately before the increase;A is the salary being paid to the current Solicitor-General;B is the salary paid to the current Solicitor-General immediately before the increase.
11. Reduction in pension[Part 1 of Schedule 1 Amended by No. 55 of 2003, s. 13, Applied:25 Sep 2003](1) A pension payable under this Act –(a) is to be reduced to take into account any commutation of the pension under clause 7A or 8; and(b) is subject to Part 2 of this Schedule which carries into effect the provisions of the Family Law Act 1975 of the Commonwealth relating to the splitting of superannuation interests, as defined in Part VIIIB of that Act.(2) A lump sum payment under this Act is subject to Part 2 of this Schedule.
12. Requirement for minimum benefit[Part 1 of Schedule 1 Amended by No. 65 of 2005, Sched. 1, Applied:15 Dec 2005] A benefit payable under this Schedule must contain an employer component that is at least the minimum benefit that satisfies the requirements of the Superannuation Guarantee (Administration) Act 1992 of the Commonwealth.
PART 2 - Family Law (Splitting of Superannuation Interests)[Part 2 of Schedule 1 Inserted by No. 55 of 2003, s. 13, Applied:25 Sep 2003]
1. Interpretation[Part 2 of Schedule 1 Amended by No. 5 of 2004, Sched. 1, Applied:09 Jun 2004] In this Part –Family Law Act means the Family Law Act 1975 of the Commonwealth;flag lifting agreement has the meaning given by section 90MN of the Family Law Act;flagging order means an order mentioned in section 90MU(1) of the Family Law Act;member has the meaning given by section 90MD of the Family Law Act;member spouse has the meaning given by section 90MD of the Family Law Act;non-member spouse has the meaning given by section 90MD of the Family Law Act;operative time has the meaning given by section 90MD of the Family Law Act;splittable payment has a meaning in accordance with section 90ME of the Family Law Act;splitting instrument means a superannuation agreement, a flagging order, a flag lifting agreement or a splitting order;splitting order means an order mentioned in section 90MT(1) of the Family Law Act;spouse has the meaning given by section 90MD of the Family Law Act;superannuation agreement has the meaning given by section 90MH of the Family Law Act;superannuation interest has the meaning given by section 90MD of the Family Law Act.
2. Application of PartThis Part applies to –(a) any benefit under this Act that is a superannuation interest; and(b) any splitting instrument that has an operative time on or after 28 December 2002.
3. Objects of Part(1) The objects of this Part are to carry into effect the provisions of the Family Law Act relating to the splitting of superannuation interests.(2) If a provision of this Part is inconsistent with a provision of the Family Law Act, the latter provision prevails to the extent of the inconsistency.
4. Duty of Minister to give effect to splitting instruments under Family Law Act(1) Where a splitting instrument affects an entitlement to a pension of a member spouse under this Act, the Minister must give effect to that instrument in paying or determining that benefit.(2) The Minister is not to make a payment to a non-member spouse under this Part before a splittable payment is payable to, or in respect of, the relevant member spouse.
5. Commutation of pension on death of non-member spouse(1) Where a share of a pension is payable to a non-member spouse under this Part, the Minister is to commute that share to a lump sum if that non-member spouse predeceases the member spouse in respect of whom the pension is being paid.(2) For the purposes of subclause (1) , the commutation factors are to be determined by the Minister on the advice of the Actuary.(3) A share of a pension paid or payable to a non-member spouse under this Part does not revert to the widow or widower of that non-member spouse on the death of that non-member spouse.(4) A lump sum payment calculated under subclause (1) is to be paid to the legal personal representative of the non-member spouse and is to be made in accordance with Part VIIIB of the Family Law Act.(5) A share of a pension payable to a non-member spouse under this Part ceases –(a) on the death of the relevant member spouse; or(b) where a reversionary pension is payable in respect of a member spouse, on the cessation of that reversionary pension.
6. Effect of benefit under splitting instrumentIf a member spouse dies and is survived by a non-member spouse who has received, is receiving or is entitled to receive, a benefit under a splitting instrument in respect of the superannuation interest of the member spouse, that non-member spouse is not entitled to a benefit under this Act in respect of the deceased member spouse except in accordance with that instrument.
7. Fees for administration of this PartFor the purposes of administering this Part, the Minister may charge reasonable fees in accordance with the Family Law Act.
8. Provision of information by Minister[Part 2 of Schedule 1 Amended by No. 5 of 2004, Sched. 1, Applied:09 Jun 2004] Where an eligible person, within the meaning of section 90MZB of the Family Law Act, has applied to the Minister for information in accordance with that section about the superannuation interest of a person entitled to a pension under Part 1 of this Schedule, the Minister must comply with the requirements of that Act as if he or she were the trustee of a superannuation fund.