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Thursday, 16 May 1968


Mr BOWEN (Parramatta) (AttorneyGeneral) - I move:

That the Bill be now read a secondtime.

The Government has reviewed the Judges' Pensions Act 1948-1961. In view of the number of changes proposed in the existing provisions, this Bill provides for a completely new Judges' Pensions Act, repealing the present Act altogether. The changes from the law in the present Act include increased rates of pension payable to widows, increased pensions in the case of a judge dying or retiring through ill health in the early years of his service as a judge, the widening of the area of recognition of previous judicial service, the alteration of benefits payable in respect of children, and, finally, making statutory provision for, and increasing, the pensions presently being paid to retired judges and widows of judges. I shall refer to these in a little more detail shortly.

The first legislative provision for pensions for Commonwealth Judges was section 48a of the Judiciary Act, which was inserted in 1926 and which provided a pension of 50% of salary for justices of the High Court who retired, regardless of age, after 15 years service. Similar provision was made in respect of judges of the Seat of Government of the Supreme Court and of the Federal Court of Bankruptcy in 1945 - section 8b of the Seat of Government Supreme Court Act 1933-1945 and section 18bb of the Bankruptcy Act 1924-1945- and in respect of the Commonwealth Court of Conciliation and Arbitration in 1947 - section 22 of the Conciliation and Arbitration Act 1904-1947. None of that legislation made any provision for judges' widows or children and it was repealed by the Judges' Pensions Act 1948.

The Bill now introduced applies to the justices or judges of all Federal courts and of the Supreme Courts of the Territories within the Commonwealth, and to persons who by virtue of an Act have the status of a judge of one of those courts. As honourable members know, presidential members of the Commonwealth Conciliation and Arbitration Commission have the status of judges, and they are covered by the provisions of the Bill. The Bill does not apply to judges of Papua and New Guinea courts; they are covered by a Judges' Pensions Ordinance of that Territory. In common with the position under the existing Act and under most judicial pensions schemes in the Australian States, the benefits provided by the Bill are non-contributory.

The full Judge's pension under the Bill remains at 50% of salary on retirement, as at present. The full pension is payable on retirement, after at least 1 0 years judicial service, at the age of 60 or over. There is a change from the present law with regard to retirement due to permanent disability or infirmity. If the Attorney-General certifies that a judge's retirement is due to permanent disability or infirmity, the judge will be entitled to a pension of 40% of his salary on retirement, plus 2% of that salary for each completed year of service in excess of 5 years, with a maximum of 50% of salary on retirement. The present rate is 14%, plus 4% for each completed year of service after the first, with a maximum of 50%. Under the Bill, the widow of a judge or retired judge is to receive five-eighths of the pension the judge would have received had he retired for permanent disability at the date of his death, or that which the retired judge was receiving at the date of his death. The present widow's proportion is one-half. The new provision will be identical with that now operating under the Superannuation Act. No pension is payable to a widow who married the judge after his retirement, and the pension payable to a widow under the Bill terminates on the widow's remarriage.

Also, the basic annual rate payable in respect of a child, which is at present $104 is doubled under the Bill. In respect of an orphan, a special annual rate of $520 or a rate of $208 plus a fraction of what would have been the widow's pension - this fraction being arrived at by dividing the widow's pension by four or the number of eligible children, whichever is the greater number - if the latter rate would be higher, will be payable. At present, an orphan is entitled only to the usual child's pension. The existing qualifying age for children under 16 years is raised to under 21 years in the case of children receiving full-time education at a school, college or university. These provisions will restore judges' children to the position of equality with children of contributors under the Superannuation Act, which they enjoyed before the 1 967 amendments to the Superannuation Act. Children's pensions are payable under the Bill only if the judge or retired judge himself is dead, and are normally payable to the widow or, if she is dead, to the child's guardian. However, provision is made for the Attorney-General to authorise the payment of a child's pension to a person other than the judge's widow if the child concerned does not live with the widow. The present Act requires payments to be made to the widow in such circumstances. Where appropriate, the Attorney-General may also authorise a child's pension to be applied direct for the benefit of a child - for example, in payment of the child's living and educational expenses at a residential school or university.

The Bill provides that judicial service in a State counts as judicial service for the purposes of the Act. This is the position also under the present law. It does not mean, of course, that the Commonwealth undertakes to pay the pensions of State judges, but that a former State judge, when becoming a Commonwealth judge, is credited with his State service for the purpose of calculating his pension entitlement when retiring from Commonwealth service. The same applies in the case of his widow or orphan children. Judicial service in the Territory of Papua and New Guinea is to count as judicial service for the purposes of the Act - this latter service does not so count at the present time. However, in relation to judges appointed after the commencement of the Act, and in relation to their widows and children, there is to be deducted from their Commonwealth pension the amount of any pension to which prior State or Territory judicial service of the judge concerned had established an entitlement. Under the present legislation, a judge could receive full judicial pensions both under the Act and under State or Territory legislation. The legislation in one of the States makes adjustments in such circumstances, and the Government believes that the Commonwealth legislation should provide likewise.

The Bill also provides, following in this regard a corresponding provision of the existing legislation, that if a judge, instead of voluntarily retiring, is removed from office, the pension provisions of the Act will apply in respect of that judge, his widow, or his children, only if the Governor-General so directs. The last matter I mention in relation to this Bill concerns pensions at present paid to retired judges or widows. There are fourteen persons at present in receipt of judges' pensions or judges' widows' pensions. The Bill determines and sets out the pensions payable to those persons after the new Act comes into operation. In addition, the children's pensions as provided by the Bill will be payable in respect of any eligible children of those persons. All payments to existing pensioners are placed on a statutory basis by the Bill. At present one of the pensioners has no legal pension entitlement, because her husband died before the commencement of the relevant judges' pensions legislation, and there are a number of others whose present pensions are made up in part of a legal entitlement and in part of ex gratia payments approved by the Government at various times.

The pensions set out in the schedule to the Bill represent increases on the pensions paid at present. The Government has examined each individual pension and has made adjustments that appeared desirable in the light of the principles incorporated in the general provisions of the Bill and in terms of comparable fairness to the pensioners in relation to each other. This Bill brings up to date the Commonwealth's judges' pensions legislation. I commend the Bill to the House.

Debate (on motion by Mr Connor) adjourned.







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