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Wednesday, 12 September 1984
Page: 906


Senator GARETH EVANS (Attorney-General)(4.21) —I move:

That the Bill be now read a second time.

I seek leave to have the second reading speech incorporated in Hansard.

Leave granted.

The speech read as follows-

The purpose of this Bill is to provide for the status and entitlements of Mr Justice Stewart as Chairman of the National Crime Authority when he resigns from the New South Wales Supreme Court.

Mr Justice Stewart was appointed on 25 June 1984 as Chairman of the National Crime Authority with the agreement of the States. The intention when he was appointed was that he would remain a Judge of the New South Wales Supreme Court during his term of office on the National Crime Authority and that he would return to that Court when that term of office came to an end. It might be noted that, under the National Crime Authority Act, his term as Chairman is a 4 year term and he is not eligible for re-appointment as Chairman.

Although it was commonly understood, during the debate that led up to the enactment of the National Crime Authority Act, that the Chairman of the Authority would a Judge-and the Bill made specific provision for this-it was not until after his appointment that a public controversy erupted about the compatibility of a serving Supreme Court Judge also holding office as Chairman of the National Crime Authority. That public controversy included a publicly expressed difference of opinion amongst the Judges of the New South Wales Supreme Court.

As a result of that controversy, Mr Justice Stewart announced his intention to resign from the New South Wales Supreme Court following his completion of the Nugan Hand Royal Commission, which was due to finish by 31 December 1984, but which may now run on a little longer.

Mr Justice Stewart was offered the appointed as Chairman of the National Crime Authority, and he accepted that office, on the basis that he would remain a Judge of the New South Wales Supreme Court, retaining his salary and all other entitlements, including his right to pension and to long leave under the scheme applying to Judges of the New South Wales Supreme Court. The Government believes that the Commonwealth now has an obligation to ensure that he is not unduly disadvantaged because of the controversy after his appointment has caused him to indicate his intention to resign as Judge of the New South Wales Supreme Court. The provisions in the Bill now before the House are contingent upon that resignation taking effect.

The Bill provides that Mr Justice Stewart will continue to enjoy judicial status during the term of his appointment as Chairman of the National Crime Authority, although he will not in fact hold office as a Judge of a Court. To this extent, the Bill follows the precedent set on the appointment of Mr Justice Rae Else-Mitchell as Chairman of the Commonwealth Grants Commission following his retirement as a Judge of the New South Wales Supreme Court. The judicial status which would be conferred upon Mr Justice Stewart by the Bill may be continued at the discretion of the Governor-General if he continues to hold a full-time office under the Commonwealth after completing his term as Chairman of the National Crime Authority.

The Bill provides that he will continue, as Chairman of the National Crime Authority, to receive the salary payable from time to time to a Judge of the New South Wales Supreme Court. In respect of other conditions of service during that time he will be entitled to the conditions of service, including as to leave, enjoyed by a Judge of the A.C.T. Supreme Court. His service as Chairman will be recognised for the purposes of the Judges Pensions Act and the Judges (Long Leave Payments) Act.

When his term of office as Chairman comes to an end, Mr Justice Stewart will have completed more than 10 years of judicial service since his first appointment as a Judge of the New South Wales District Court in 1977. He will then, however, be a few months short of 60 years of age, which is the minimum retiring age under both the Commonwealth and New South Wales Judges' Pensions Acts. Notwithstanding that he will have not quite reached that minimum retiring age, the Bill provides that he may then retire on pension as if he had reached that age if he so wishes. His pension, whenever he retires, will be based on the salary payable to a New South Wales Supreme Court Judge.

Mr Justice Stewart has, however, said that he would hope to continue in full- time employment of some kind after his term of Chairman comes to an end. The Government therefore proposes to recommend to the Executive Council that, after he leaves the New South Wales Court, Mr Justice Stewart be appointed as a Deputy President of the Administrative Appeals Tribunal, with the intention that he actively take up that role following the completion of his term as National Crime Authority Chairman. The Bill accordingly enables that appointment to be made and contains consequential provisions to avoid the payment of double salary and the accrual of double pension entitlements. The Bill also provides for him to take long leave on the same conditions as apply to Federal Judges in respect of his judicial service, including his service as Chairman of the Authority and to receive payment in lieu of leave not taken when he retires. This would give him substantially the same benefits as if he had remained a New South Wales Judge.

The Government regrets that Mr Justice Stewart was put in the position where this legislation has become necessary. But the Government believes, nevertheless , that the Parliament, having enacted the National Crime Authority Act on the basis that the Authority might be headed by a Judge, has an obligation to Mr Justice Stewart to ensure that his rights are safeguarded.

I commend the Bill to the Senate.

Debate (on motion by Senator Reid) adjourned.