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1
Judicial Legislation Amendment
JUDICIAL LEGISLATION AMENDMENT
BILL 1994
EXPLANATORY NOTES
GENERAL OUTLINE
Objectives of the legislation
The objectives of the Bill are:
(i) to remove the current legislative impediment preventing the
Salaries and Allowances Tribunal amalgamating into "salary" the
currently separate components of salary, general allowance and
jurisprudential expenses payable to Supreme and District Court
Judges;
(ii) to ensure that pensions paid in respect of Judges who died or
retired prior to 6 February 1984 will continue to be paid on the
basis of retirement salary plus increments to salary, and will not
reflect the higher increment which amalgamation of salary and
allowances would produce; and
(iii) to empower the Salaries and Allowances Tribunal to set the salary
and allowances of Industrial Commissioners and Members of the
Land Court.
To achieve these objectives, amendments are made to the following Acts:
· Industrial Relations Act 1990
· Judges (Pensions and Long Leave) Act 1957
· Judges (Salaries and Allowances) Act 1967
· Land Act 1962
· Supreme Court of Queensland Act 1991
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Judicial Legislation Amendment
Reasons for the Bill
The Fourteenth Report of the Salaries and Allowances Tribunal
recommended amalgamation of the presently separate components of
salary, general allowance and jurisprudential expenses paid to the Judges of
the Supreme and District Courts. Under the existing law, the Tribunal had
no power to amalgamate the salaries and allowances of the Judges of the
Court of Appeal, and the Report was accordingly disallowed by the
Parliament on 19 November 1993.
The Bill will enable the Tribunal to amalgamate salary and allowances if
it considers it appropriate.
Under the existing law, amalgamation of salary and allowances as
"salary" would have flow-on effects for pensions paid to some Judges, and
for the salary and pensions paid to Industrial Commissioners and Land
Court Members, which are linked to "salary".
The Bill avoids these flow-on effects. In terms of Judges' pensions,
necessary amendments are made which essentially preserve the status quo.
In terms of Industrial Commissioners and Land Court Members, the direct
link to Judges' salary is removed, and instead the Tribunal is given power
to set their salary and allowances.
Estimated cost for Government implementation
It is not expected that there will be any additional cost for Government.
Consultation
The Department of Justice and Attorney-General, Department of
Employment, Vocational Education, Training and Industrial Relations, and
the Department of Lands were involved in the preparation of the Bill.
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Judicial Legislation Amendment
NOTES ON PROVISIONS
Clause 1 States the short title of the Act.
Clause 2 Provides that clauses 6 and 7 of the Bill (amendment of the
definition of "salary" under the Judges (Pensions and Long Leave) Act
1957 for the purpose of calculation of judicial pensions) commence
immediately after the commencement of the Supreme Court of Queensland
Act 1991 (that date being 14 December 1991). This retrospective operation
of the new definition ratifies and endorses the current means by which
judicial pensions are calculated and paid.
Clause 3 States that Part 2 amends the Industrial Relations Act 1990.
Clause 4 Omits section 27 of the Industrial Relations Act 1990 which
currently links the remuneration of Industrial Commissioners to the salary
and general allowance of a District Court Judge.
The new section 27 provides that the salary and allowances payable to
Industrial Commissioners are to be fixed by the Salaries and Allowances
Tribunal under the Judges (Salaries and Allowances) Act 1967. (That Act is
also amended in this Bill to widen the jurisdiction of the Tribunal
accordingly--see Part 4.)
Clause 5 States that Part 3 amends the Judges (Pensions and Long
Leave) Act.
Clause 6 Omits the definition of "salary". A new definition is inserted
by clauses 6 and 7. Clause 6 applies to Judges who retired after the
commencement of the Judges' Pensions Act Amendment Act 1984 (the
commencement date being 6 February 1984). It clarifies and confirms the
pension entitlement which those Judges currently receive, in that it provides
that "salary" means salary and allowances payable as if the Judge had not
died or retired, and continues the current practice of including both the
general allowance and the jurisprudential allowance as part of the pension
entitlement. Pensions will therefore continue to be calculated on the basis of
salary and allowances as they alter from time to time, rather than as they
were when the Judge died or retired. This new definition effectively
confirms the continuing application of section 8B of the Act, which
provided that pension entitlements were to be adjusted in the same nature
and to the same extent as adjustments made by the Salaries and Allowances
Tribunal to salary and allowances. That section was omitted in 1992,
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Judicial Legislation Amendment
although its effect was largely preserved by virtue of the Acts Interpretation
Act 1954.
Clause 7 This clause inserts a new definition for "salary" to be used in
the calculation of pensions for those Judges who retired before the
commencement of the Judges' Pensions Act Amendment Act 1984. The
pension entitlements paid to those Judges (and their widows) have always
been based on the salary payable at the time of the Judge's retirement or
death, with increments as prescribed under the Act from time to time (3%
per annum from 1972 to 1974, Consumer Price Index increases from 1974
to 1984, and percentage increases granted by the Tribunal after that date).
The new definition is needed to effectively preserve the status quo in respect
of these pensions.
In order to do this, two changes are made. The first corrects the basis on
which salary for the purpose of the pension entitlement is granted. An
amendment in 1991 reworded the definition but unintentionally altered the
basis of the pension entitlement to be salary as it is paid from time to time,
rather than salary at retirement, altered by the increments since the date of
retirement. The second ensures that if salary and allowances were
amalgamated as "salary", this will not distort the basis for calculation of
these Judges' pensions.
It takes as a starting point the individual pension entitlements of Judges
as at 14 December 1991 as if the amendment to the definition of "salary"
had not been made that day, and provides that they are to be altered in
accordance with a formula each time the Tribunal makes a new report. That
formula, in essence, is that the pension entitlement is to be altered each time
by the same amount that the total salary package of Judges changes from
the total salary package paid under the Thirteenth Report of the Salaries and
Allowances Tribunal. This ensures that like is compared with like.
Clause 8 This clause replaces section 16 (Act not to apply if Judge
removed from office). The provision has been reworded in accordance with
current legislative drafting practices, but its effect remains the same.
Clause 9 States that Part 4 amends the Judges (Salaries and Allowances)
Act 1967.
Clause 10 This clause restates the old section 3, relating to salary and
allowances of District Court Judges, and further provides that the total of
salary and allowances cannot be reduced by a determination of the Tribunal.
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Judicial Legislation Amendment
This protection has always applied to Supreme Court Judges by virtue of
section 17 of the Constitution Act 1867.
Clause 11 This clause inserts new sections 3A and 3B, which provide
that the salary and allowances payable to the Industrial Commissioners and
Land Court Members are to be those fixed by the Tribunal under the Judges
(Salaries and Allowances) Act 1967. It provides that the total salary and
allowances paid to Industrial Commissioners and Land Court Members
from time to time is not to be reduced by the Tribunal. A transitional
arrangement for payment of salary and allowances is provided.
Clause 12 This clause restates section 4, relating to salary of Magistrates,
and further provides that the annual rate of salary cannot be reduced by a
determination of the Tribunal. This protection has always applied to
Supreme Court Judges by virtue of section 17 of the Constitution Act 1867.
Clause 13 This clause inserts a new category of persons who may not be
appointed as Tribunal Members, namely, Stipendiary Magistrates. As the
Tribunal sets the salary of Stipendiary Magistrates, it would be
inappropriate for these persons to be Members.
Clause 14 The amendments to section 12 (Inquiry and report on judicial
salaries and allowances) require the Tribunal to inquire and report to the
relevant Minister on changes to the salary and allowances of Industrial
Commissioners and Land Court Members.
Clause 15 Section 13(2) requires the Tribunal to have regard to particular
matters in deciding on changes in salary and allowances. Clause 12 amends
this section by making reference to the matters which the Tribunal must
consider in determining changes to the salary and allowances of Industrial
Commissioners and Land Court Members.
In the case of Industrial Commissioners, direct comparisons solely on
the basis of the title "Industrial Commissioner" do not reflect the difference
in responsibilities of such office holders in different jurisdictions. For
example, Queensland Industrial Commissioners have responsibility for a
range of functions performed in the Commonwealth Industrial Relations
system by Deputy Presidents who are at a higher level in the
Commonwealth structure than Commonwealth Industrial Commissioners,
and for some functions of the Industrial Court of Australia itself. Section
13(2)(b) is intended to allow this to be taken into account in making a
determination.
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Judicial Legislation Amendment
Similarly, for Land Court Members, section 13(2)(c) will allow the
Tribunal to consider office holders in other states who perform similar
functions and have similar responsibilities, whether or not they are termed
"Land Court Members" or are at the same level in that state's structure.
Clause 16 The existing section 16 (Regulations) is replaced with a new
section. The provision has been reworded in accordance with current
legislative drafting practices, but its effect remains the same.
Clause 17 States that Part 5 amends the Land Act 1962.
Clause 18 Omits section 31 of the Land Act 1962 which currently links
the remuneration of Members of the Land Court to certain salaries and
allowances of District Court Judges.
The new section 31 provides that the salary and allowances payable to
Land Court Members are to be fixed by the Salaries and Allowances
Tribunal under the Judges (Salaries and Allowances) Act 1967. (Reference
has previously been made in these Explanatory Notes to that Act being
amended by this Bill to widen the jurisdiction of the Tribunal
accordingly--see Part 4.)
Clause 19 The existing section 31A (Leave of absence to members) is
omitted and replaced by this clause. Much of the existing section related to
Members appointed prior to 1975. As there are no longer any current
Members who were appointed prior to 1975, those provisions were
redundant and have been removed. The new section restates that Members
are entitled to leave of absence under the Judges (Pensions and Long
Leave) Act 1957.
Clause 20 This clause omits section 31B (Election as to leave of
absence). This section was only relevant to those Members appointed prior
to 1975, and for the same reason as the above clause, has been removed.
Clause 21 The existing section 31C(1) (Pension benefits to members) is
omitted and replaced by this clause. The new section restates that Members
are entitled to pension benefits under the Judges (Pensions and Long
Leave) Act 1957.
Clause 22 States that Part 6 amends the Supreme Court of Queensland
Act 1991.
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Judicial Legislation Amendment
Clause 23 Section 102 deals with the judicial entitlements of the first
Judges of Appeal which were set by determination of the Governor in
Council. This clause amends section 102 to enable the Tribunal to
amalgamate the currently separate components of salary, general allowance
and jurisprudential expenses. It provides, however, that amalgamation can
only occur if a similar amalgamation is made for the other Judges of the
Supreme Court.
Clause 24 The existing section 109 (Regulations) is replaced with a new
section. The provision has been reworded in accordance with current
legislative drafting practices, but its effect remains the same.
© The State of Queensland 1994