2004-2005-2006 The Parliament of the Commonwealth of Australia HOUSE OF REPRESENTATIVES Presented and read a first time Federal Magistrates Amendment (Disability and Death Benefits) Bill 2006 No. , 2006 (Attorney-General) A Bill for an Act to amend the Federal Magistrates Act 1999, and for related purposes [Page Break] 1 Short title ........................................................................................... 1 2 Commencement ................................................................................. 1 3 Schedule(s) ........................................................................................ 1 Schedule 1--Amendment of the Federal Magistrates Act 1999 3 i Federal Magistrates Amendment (Disability and Death Benefits) Bill 2006 No. , 2006 [Page Break] 1 Act 1999, and for related purposes 2 The Parliament of Australia enacts: 3 1 Short title 4 This Act may be cited as the Federal Magistrates Amendment 5 (Disability and Death Benefits) Act 2006. 6 2 Commencement 7 This Act commences on the day after it receives the Royal Assent. 8 3 Schedule(s) 9 Each Act that is specified in a Schedule to this Act is amended or 10 repealed as set out in the applicable items in the Schedule 11 Federal Magistrates Amendment (Disability and Death Benefits) Bill 2006 No. , 2006 1 [Page Break] 1 according to its terms. 2 2 Federal Magistrates Amendment (Disability and Death Benefits) Bill 2006 No. , 2006 [Page Break] 1 Schedule 1--Amendment of the Federal 2 Magistrates Act 1999 3 4 1 Section 5 5 Insert: 6 beneficiary, in respect of a payment under clause 9D of 7 Schedule 1, has the meaning given by subclause 9D(4) of that 8 Schedule. 9 2 Section 5 10 Insert: 11 Commonwealth superannuation contribution, in respect of a 12 Federal Magistrate or retired Federal Magistrate, means a 13 Commonwealth contribution to the Magistrate's choice of: 14 (a) a complying superannuation fund (within the meaning of 15 section 45 of the Superannuation Industry (Supervision) Act 16 1993); or 17 (b) a retirement savings account (within the meaning of section 8 18 of the Retirement Savings Accounts Act 1997). 19 3 Section 5 20 Insert: 21 eligible child has the meaning given by clause 9F of Schedule 1. 22 4 Section 5 23 Insert: 24 eligible spouse has the meaning given by clause 9E of Schedule 1. 25 5 Section 5 26 Insert: 27 living with a person has the meaning given by subclause 9E(8) of 28 Schedule 1. 29 6 Section 5 30 Federal Magistrates Amendment (Disability and Death Benefits) Bill 2006 No. , 2006 3 [Page Break] Insert: 1 marital relationship has the meaning given by subclause 9E(5) of 2 Schedule 1. 3 7 Section 5 4 Insert: 5 prior judicial service, in relation to a retired disabled Federal 6 Magistrate, means service, prior to the Magistrate's appointment as 7 a Federal Magistrate, as one of the following: 8 (a) a Justice or Judge of a federal court; 9 (b) the holder of an office, being an office the holder of which 10 has, by virtue of an Act, the same status as a Justice or Judge 11 of a federal court; 12 (c) a Federal Magistrate; 13 (d) a Judge or acting Judge of a court of a State or Territory; 14 (e) a magistrate of a State or Territory; 15 (f) in the case of a State or Territory office that qualifies the 16 holder of the office for a pension or retiring allowance under 17 a law of the State or Territory relating to pensions or retiring 18 allowances payable to retired Judges--a holder of the office 19 (including an acting holder). 20 Note: If the Magistrate was appointed as a Federal Magistrate more than 21 once, see section 5A. 22 8 Section 5 23 Insert: 24 retired disabled Federal Magistrate means a person certified by 25 the Minister to be a retired disabled Federal Magistrate under 26 paragraph 9A(2)(a) of Schedule 1. 27 9 Section 5 28 Insert: 29 retires, in relation to a Federal Magistrate, means ceases, otherwise 30 than by death, to hold any office as a Federal Magistrate. 31 10 After section 5 32 Insert: 33 4 Federal Magistrates Amendment (Disability and Death Benefits) Bill 2006 No. , 2006 [Page Break] 5A Prior judicial service 1 For the purposes of the definition of prior judicial service, if a 2 retired disabled Federal Magistrate was appointed as a Federal 3 Magistrate more than once, the reference to the Magistrate's 4 appointment as a Federal Magistrate is taken to be a reference to 5 the Magistrate's most recent appointment as a Federal Magistrate. 6 11 Before clause 1 of Schedule 1 7 Insert: 8 Part 1--Appointment of Federal Magistrates 9 12 After clause 3 of Schedule 1 10 Insert: 11 Part 2--Terms and conditions of Federal 12 Magistrates 13 Division 1--Terms and conditions of serving Federal 14 Magistrates 15 13 After clause 9 of Schedule 1 16 Insert: 17 Division 2--Disability and death benefits 18 9A Certification of retired disabled Federal Magistrates 19 (1) If: 20 (a) a Federal Magistrate retires; and 21 (b) the Magistrate has not attained the age of 65 years; 22 the Minister may be requested to certify that the Magistrate is a 23 retired disabled Federal Magistrate. 24 (2) On receiving the request, the Minister must: 25 (a) if the Minister is satisfied that the retirement was due to 26 permanent disability or infirmity--certify that the Magistrate 27 is a retired disabled Federal Magistrate; or 28 Federal Magistrates Amendment (Disability and Death Benefits) Bill 2006 No. , 2006 5 [Page Break] (b) otherwise--refuse to so certify. 1 (3) If the Minister refuses to so certify, application may be made to the 2 Administrative Appeals Tribunal for review of the refusal. 3 9B Pensions for retired disabled Federal Magistrates 4 (1) A retired disabled Federal Magistrate is entitled to a pension until: 5 (a) he or she attains the age of 65 years; or 6 (b) he or she dies; 7 whichever happens first. 8 Annual rate of pension 9 (2) The annual rate of the pension is 60% of the annual rate of salary 10 the Magistrate would have been entitled to from time to time if he 11 or she had not retired. 12 (3) However, the rate of the pension must be reduced by the amount of 13 any pension or retiring allowance: 14 (a) payable to the Magistrate, whether under a law or otherwise, 15 out of money provided in whole or in part by the 16 Commonwealth, a State or a Territory (other than a 17 Commonwealth superannuation contribution the Magistrate 18 was entitled to under a determination under subclause 8(1)); 19 and 20 (b) payable to the Magistrate by reason of prior judicial service, 21 or prior judicial service and any other service. 22 (4) For the purposes of subclause (2), the annual rate of salary is the 23 annual rate of remuneration determined under clause 5, excluding 24 any allowances that are paid in lieu of any other entitlement. 25 When pension is due and payable 26 (5) The pension is due daily, but is payable on the days on which 27 salary payments are made to Federal Magistrates. 28 Safety, Rehabilitation and Compensation Act 1988 29 (6) For the purposes of Division 3 of Part II of the Safety, 30 Rehabilitation and Compensation Act 1988: 31 6 Federal Magistrates Amendment (Disability and Death Benefits) Bill 2006 No. , 2006 [Page Break] (a) the pension is taken to be a pension payable to the Magistrate 1 under a superannuation scheme; and 2 (b) the Magistrate is not required to pay superannuation 3 contributions to that scheme. 4 9C Superannuation for retired disabled Federal Magistrates 5 (1) A retired disabled Federal Magistrate is entitled to a 6 Commonwealth superannuation contribution until: 7 (a) he or she attains the age of 65 years; or 8 (b) he or she dies; 9 whichever happens first. 10 (2) The amount of the Commonwealth superannuation contribution is 11 the amount of the Commonwealth superannuation contribution (if 12 any) the Magistrate would have been entitled to from time to time, 13 under a determination under subclause 8(1), if he or she had not 14 retired. 15 (3) The Commonwealth superannuation contribution is to be made by 16 payments on the days on which salary payments are made to 17 Federal Magistrates. 18 9D Death benefits 19 (1) A payment is payable under this section if: 20 (a) a Federal Magistrate, or a retired disabled Federal Magistrate, 21 who has not attained the age of 65 years dies; and 22 (b) the Magistrate leaves one or more eligible spouses or eligible 23 children. 24 Amount 25 (2) The amount of the payment is the amount of the Commonwealth 26 superannuation contribution (if any) the Magistrate would have 27 been entitled to, under a determination under subclause 8(1), 28 during the period in subclause (3) if: 29 (a) the Magistrate had neither died nor retired before the end of 30 that period; and 31 (b) the amount of the Commonwealth superannuation 32 contribution the Magistrate was entitled to under that 33 determination did not change during that period. 34 Federal Magistrates Amendment (Disability and Death Benefits) Bill 2006 No. , 2006 7 [Page Break] (3) The period in this subclause is the period: 1 (a) beginning on the day on which the Magistrate died; and 2 (b) ending on the day on which the Magistrate would have 3 attained the age of 65 years. 4 Beneficiaries 5 (4) The beneficiaries in respect of the payment are each eligible 6 spouse and eligible child the Magistrate leaves. 7 (5) If there is only one beneficiary in respect of the payment, the 8 payment is payable to the beneficiary. 9 (6) If there is more than one beneficiary in respect of the payment, the 10 payment is payable to the beneficiaries in the proportions (totalling 11 100% of the amount of the payment) the Minister considers 12 appropriate, having regard to the respective circumstances of each 13 beneficiary. 14 Note: For review of decisions under subclause (6), see subclause (10). 15 Beneficiaries--eligible children 16 (7) If the payment (or a proportion of the payment) is payable to an 17 eligible child, the Minister may, in writing, direct that: 18 (a) some or all of the payment or proportion be paid to a 19 specified person for the benefit of the child (including for the 20 support or education of the child); or 21 (b) if the Minister is satisfied that, by reason of special 22 circumstances, it is desirable to do so in the interests of the 23 child--some or all of the payment or proportion be spent in a 24 specified manner for the benefit of the child. 25 Note: For review of decisions under subclause (7), see subclause (10). 26 (8) The Minister may be requested to give a direction under 27 subclause (7) in respect of an eligible child. 28 (9) On receiving an application, the Minister must: 29 (a) if he or she is satisfied that he or she should make a direction 30 in respect of the child--give such a direction; or 31 (b) if he or she is not so satisfied--refuse to give such a 32 direction. 33 Note: For review of decisions under paragraph (9)(b), see subclause (10). 34 8 Federal Magistrates Amendment (Disability and Death Benefits) Bill 2006 No. , 2006 [Page Break] Applications for review 1 (10) Application may be made to the Administrative Appeals Tribunal 2 for review of the following: 3 (a) a decision by the Minister under subclause (6); 4 (b) a direction by the Minister under subclause (7); 5 (c) a refusal by the Minister under paragraph (9)(b) to give a 6 direction. 7 9E Relationship definitions 8 Meaning of eligible spouse 9 (1) For the purposes of this Act, subclauses (2), (3) and (4) set out the 10 3 circumstances in which a person is an eligible spouse of a 11 Federal Magistrate, or a retired disabled Federal Magistrate, who 12 dies. 13 (2) A person is an eligible spouse of a Federal Magistrate who dies if 14 the person had a marital relationship with the Magistrate at the 15 time of the death of the Magistrate. 16 (3) A person is an eligible spouse of a retired disabled Federal 17 Magistrate who dies if: 18 (a) the person had a marital relationship with the Magistrate at 19 the time of the Magistrate's death; and 20 (b) the marital relationship began: 21 (i) before the Magistrate retired; or 22 (ii) before the Magistrate attained the age of 60 years. 23 (4) A person is an eligible spouse of a Federal Magistrate, or a retired 24 Federal Magistrate, who dies if: 25 (a) the person had previously had a marital relationship with the 26 Magistrate; and 27 (b) the person did not, at the time of the Magistrate's death, have 28 a marital relationship with the Magistrate but was legally 29 married to him or her; and 30 (c) in the Minister's opinion, the person was wholly or 31 substantially dependent upon the Magistrate at the time of the 32 Magistrate's death; and 33 Federal Magistrates Amendment (Disability and Death Benefits) Bill 2006 No. , 2006 9 [Page Break] (d) in the case of a marital relationship that began after the 1 Magistrate retired--the marital relationship began before the 2 Magistrate attained the age of 60 years. 3 Note: For review of decisions under paragraph (4)(c), see subclause (9). 4 Meaning of marital relationship 5 (5) For the purposes of this Act, a person had a marital relationship 6 with another person at a particular time if: 7 (a) the person had been living with the other person as the other 8 person's husband or wife for a continuous period of at least 3 9 years up to that time; or 10 (b) both: 11 (i) the person had been living with the other person as the 12 other person's husband or wife for a continuous period 13 of less than 3 years up to that time; and 14 (ii) the Minister, having regard to any relevant evidence, is 15 of the opinion that the person ordinarily lived with the 16 other person as the other person's husband or wife on a 17 permanent and bona fide domestic basis at that time; 18 whether or not the person was legally married to the other person. 19 Note 1: Subclause (7) lists some of the evidence relevant to 20 subparagraph (5)(b)(ii). 21 Note 2: For review of decisions under subparagraph (5)(b)(ii), see 22 subclause (9). 23 (6) For the purposes of this Act, a marital relationship is taken to have 24 begun at the beginning of the continuous period mentioned in 25 paragraph (5)(a) or subparagraph (5)(b)(i). 26 (7) For the purpose of subparagraph (5)(b)(ii), relevant evidence 27 includes, but is not limited to, evidence establishing any of the 28 following: 29 (a) that the person was wholly or substantially dependent on that 30 other person at the time; 31 (b) that the persons were legally married to each other at the 32 time; 33 (c) that the persons had a child who was: 34 (i) born of the relationship between the persons; or 35 (ii) adopted by the persons during the period of the 36 relationship; 37 10 Federal Magistrates Amendment (Disability and Death Benefits) Bill 2006 No. , 2006 [Page Break] (d) that the persons jointly owned a home which was their usual 1 residence. 2 Meaning of living with a person 3 (8) For the purposes of this Act, a person is taken to be living with 4 another person if the Minister is satisfied that the person would 5 have been living with that other person except for a period of: 6 (a) temporary absence; or 7 (b) absence because of special circumstances (for example, 8 absence because of the person's illness or infirmity). 9 Note: For review of decisions under subclause (8), see subclause (9). 10 Applications for review 11 (9) Application may be made to the Administrative Appeals Tribunal 12 for review of a decision by the Minister under paragraph (4)(c), 13 subparagraph (5)(b)(ii) or subclause (8). 14 9F Meaning of eligible child 15 (1) For the purposes of this Act, a person is an eligible child of a 16 Federal Magistrate, or a retired Federal Magistrate, who dies if: 17 (a) the person: 18 (i) has not attained the age of 16 years; or 19 (ii) has not attained the age of 25 years and is receiving 20 full-time education at a school, college or university; 21 and 22 (b) one of the following applies: 23 (i) the person is a child or adopted child of the Magistrate; 24 (ii) in the Minister's opinion, the person was wholly or 25 substantially dependent on the Magistrate at the time of 26 the Magistrate's death; 27 (iii) in the Minister's opinion, the person would have been 28 wholly or substantially dependent on the Magistrate but 29 for the Magistrate's death. 30 (2) Application may be made to the Administrative Appeals Tribunal 31 for review of a decision by the Minister under 32 subparagraph (1)(b)(ii) or (iii). 33 Federal Magistrates Amendment (Disability and Death Benefits) Bill 2006 No. , 2006 11 [Page Break] 9G Appropriation 1 The following are to be paid out of the Consolidated Revenue 2 Fund, which is appropriated accordingly: 3 (a) pensions under clause 9B; 4 (b) Commonwealth superannuation contributions under 5 clause 9C; 6 (c) payments under clause 9D. 7 Division 3--Remuneration of a Federal Magistrate not to 8 be diminished 9 9H Remuneration of a Federal Magistrate not to be diminished 10 (1) The remuneration of a Federal Magistrate is not to be diminished 11 during his or her continuance in office. 12 (2) In subclause (1): 13 diminished has the same meaning as in paragraph 72(iii) of the 14 Constitution. 15 remuneration has the same meaning as in paragraph 72(iii) of the 16 Constitution. 17 14 Before clause 10 of Schedule 1 18 Insert: 19 Part 3--Acting Chief Federal Magistrate 20 21 15 Clause 11 of Schedule 1 22 Repeal the clause. 23 16 Application 24 The amendments made by this Schedule apply in relation to persons 25 who are Federal Magistrates at or after the commencement of this item. 26 12 Federal Magistrates Amendment (Disability and Death Benefits) Bill 2006 No. , 2006