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Tuesday, 18 April 1961


Mr WHITLAM (Werriwa) .- The sole purpose of this bill is to provide that the judge of the Northern Territory Supreme Court shall have the same entitlement to a pension, and his widow after him, as is available to all other federal judges and their widows. The Opposition does not oppose such a provision. It would be quite anomalous if the Northern Territory judge were to be singled out in this matter; he should receive no more and no less than all his colleagues receive.

We take the opportunity on this bill, since it deals with one matter only - the question of pensions - as distinct from the last bill which dealt not only with salaries but also with a very great number of other matters, to focus attention on the necessity for coordinating the matters of judicial emoluments and practices between the Commonwealth and its various courts and the various State courts. Bills on this subject very often give rise to some exaggerated and intemperate remarks on both sides of the House. I suppose that is inevitable since judges' pensions are different from other pensions in at least four respects - they are usually noncontributory, no means test is applied, the pensions are paid after a relatively short qualifying period, and they are paid in some instances at a low qualifying age. I have already referred to the differences in respect of judges' salaries. The differences in judges' pensions are no fewer or smaller because the pensions are related to the salaries and the percentage fixed for the pensions varies quite considerably between the different States. I shall survey the States to illustrate the anomalies that exist.

In New South Wales, a judge has to retire at 70 years of age. If he has had five years' service at that age, he receives 25 per cent. of his salary as a pension. He receives an additional 3½ per cent. of his salary for each additional complete year of service. The maximum amount of pension he can receive is 60 per cent. of his salary. If he retires at 60 years of age and has had ten years' service, the judge receives the same pension as he would receive if he had retired at 70 years. The judge's widow receives a pension of 20 per cent. of his salary.

In Victoria, judges retire at 72 years of age. If they retire at that age after fifteen years' service, they receive a pension of 40 per cent. of their salary. Their widows receive a pension of 20 per cent. of their salary.

In Queensland, judges have to retire at 70 years of age. Tf they have had five years' service, they receive a pension of 20 per cent. of their salary. The pension rises by 4 per cent. of the salary for every complete year of service. The maximum pension they can receive is 40 per cent. of their salary. They can, however, retire at 60 years, and if they have served ten years they can receive a pension of 27½ per cent. of their salary. The amount of pension rises at 2i per cent. of the salary for every year they have served in excess of ten years, and their maximum pension is 40 per cent. of their salary. Judges' widows receive pensions on a graduated scale, rising to a maximum of 20 per cent. of the salary.

In South Australia, alone among the States, judges must contribute if they wish to receive pensions. The judges must retire at 70 years of age. Those who retire at 70 years and have been contributors on the sliding scale, which depends on the age at which they are appointed, receive 50 per cent. of their salary as pension. Their widows receive 25 per cent. of the salary as pension.

In Western Australia, judges who retire after 60 years of age and have served ten years receive 27½ per cent. of their salary as pension. The pension rises by 2i per cent. of the salary for every additional year of service and the maximum pension is 40 per cent. of the salary. Their widows receive a maximum of 20 per cent. of the salary as pension.

In Tasmania, judges who retire after they reach 60 years of age and after fifteen years' service receive a pension of 50 per cent, of their salary and their widows receive £1,000 or 25 per cent, of the pension, whichever is the greater.

The differences in salary between judges are very considerable; the differences in pensions are greater still. This seems an appropriate time at which to assert, therefore, our view that the Commonwealth should take the lead in co-ordinating these matters of judicial pensions. Unquestionably these pensions are unusually large - they have many unusual features - but we do not object to them on that basis. In fact. Labour governments in this Parliament and in the State parliaments have been responsible for many of the judicial pension schemes. We have initiated and supported these schemes because we believe that a judge in retirement - in the Commonwealth the judges decide for themselves when and if they should retire - should enjoy the same independent and aloof life that he has followed when he was on the Bench. It would be wrong to say that judicial salaries are disproportionately large. Few people who are appointed as judges do not suffer a fall in income. Judges do not accept appointment to the bench in order to increase their incomes. The only material satisfaction that a judge can expect from being appointed to the bench is greater security in his retirement. The other satisfactions he gains are the status and significance which attach to judges, and which do not attach to persons who appear before them.

May I take this opportunity to say that we would hope that judges in retirement would conduct themselves with the same decorum and the same aloofness from commercial and business interests which they are expected - in fact, required - to show when they are on the bench. There was recently an unfortunate case in which a federal judge, who retired with a considerable pension and a knighthood, accepted the office of chairman of directors of a company which was seeking a television licence. There is no question that the people who appointed him as chairman of directors of the applicant company thought that his prestige would advance their cause. I greatly regret that the judge accepted the position, and it is an example of what, regrettably, can happen. The judge should not have allowed himself to be used in that position and in that way. When they retire, judges are given pensions which enable them to observe the same dignity in retirement as they have to observe while on the bench. While I am not suggesting that there should be any requirement in any statute for it, I think we would be failing in our duty if, the first time legislation of this kind comes before the House after the incident to which I have referred, we did not point to the regrettable position that can arise.

Judges are not alone in this matter. One of the unfortunate temptations to which Australian Governors-General and Governors may fall prey is that they are asked to take commercial positions upon their retirement. One would hope that when we have more Australian GovernorsGeneral and Governors adequate pensions will be made available to them.

There are some other matters which should be mentioned when considering this bill. I regret that the bill does not make provision for judges' children who are under sixteen years of age or who are still undergoing education, where both the judge and his widow die before the children have either reached sixteen years of age or completed their education. That is something which could occur, as we know. There have been cases of judges dying and leaving young children, and although, in the cases that I know of, the widows are quite young, if those widows should unfortunately die before the children reached sixteen years of age, there would be no provision for those children. In Western Australia alone there is provision for the payment of a small pension to dependent children where both the judge and the widow die before the children reach sixteen years of age.

I also believe that there ought to be reciprocity between the Commonwealth and the States with respect to judicial pensions. There have been many cases of State judges being appointed to Federal courts. One member of the High Court was formerly a member of the Supreme Court of Victoria and another was formerly a member of the Supreme Court of New South

Wales. In the past, there have been a number of members of the High Court who were formerly members of State supreme courts. There is also a member of the Commonwealth Arbitration Commission who was formerly a member of the New South Wales Industrial Commission. The converse is rarer. Not long ago, however, there was a proposal that one of the judges of the High Court should be appointed Chief Justice of one of the States. I understand that negotiations did take place between the Attorney-General of the Commonwealth and the Attorney-General of the State concerned. There is provision in the New South Wales Judges Pensions Act for New South Wales judges to be given credit for service as judges in the Commonwealth sphere. I feel that we should seek provision by other States for credit to be given to Commonwealth judges who accept service as State judges.

At the moment there is no provision for dependent children where both a federal judge and his widow die before the children attain sixteen years of age.


Mr Turnbull - What about other children in the community apart from those of judges? Surely to goodness they should be considered?


Mr WHITLAM - Judges have been singled out.


Mr Turnbull - You are singling them out for a special purpose.


Mr WHITLAM - I thought we were in general agreement that judges have been singled out by all Commonwealth governments of all political complexions, and by all State governments, because it is hoped that, in retirement or on incapacity, they, and their widows after them, will be given a decent status, independence and immunity. We expect them to have that independence when they are in office, and, by this bill, we make provision for the judges after they retire, and for their widows after the judges die, and I simply suggest that in this bill we should make for their children provision similar to that made in Western Australia. The attraction of judicial office, and the practice of that office, now depend very largely on the fact that judges know that they and their widows will be independent for the rest of their lives. I am only suggesting that provision should be made for their children. Some provision is made for them in one of the States, and it seems perfectly reasonable that similar provision should be made here.

In order to bring to a head the need to co-ordinate judicial practices between the States, I propose moving an amendment which has for its purpose the deferment of this matter for six months to enable a conference to take place between the Commonwealth and the States. I am authorized to say on behalf of the Opposition that if, regrettably, in that six months the person who is about to be appointed to the Supreme Court of the Northern Territory, or his dependants, were to become eligible for the provision which is being made under this bill, then we would agree to the passage of a retrospective measure in favour of him or his dependants. I move -

That the word " now " be omitted from, and that the words " this day six months in order that the Government may confer with the States with a view to adopting a uniform basis for the payment of judges' pensions " be added to, the question.







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