COUNTY COURT ACT 1958 - SECT 14 Provision for pensions to County Court judges and their partners
COUNTY COURT ACT 1958 - SECT 14
Provision for pensions to County Court judges and their partnersS. 14(1) substituted by No. 16/1986 s. 8(b) (as amended by No. 107/1986 s. 9(a)(b)).
(1) The commission of a judge ceases to be in force and the office becomes vacant—
S. 14(1)(aaa) inserted by No. 16/2005 s. 7(2).
(aaa) on the judge being removed from office by the Governor in Council in accordance with Part IIIAA of the Constitution Act 1975 ; or
S. 14(1)(aa) inserted by No. 16/2005 s. 7(2).
(aa) on the abolition of the office of the judge by or under an Act; or
S. 14(1)(a) amended by No. 14/2006 s. 9(a).
(a) in the case of a judge appointed before the commencement of section 8 of the Courts Amendment Act 1986 who did not make an election under section 13A before the commencement of section 7 of the Courts Legislation (Judicial Appointments and Other Amendments) Act 2005 —upon the judge attaining the age of 72 years; or
S. 14(1)(b) amended by No. 14/2006 s. 9(b).
(b) in the case of a judge appointed before the commencement of section 8 of the Courts Amendment Act 1986 who made an election under section 13A before the commencement of section 7 of the Courts Legislation (Judicial Appointments and Other Amendments) Act 2005 —upon the judge attaining the age of 70 years; or
S. 14(1)(c) amended by No. 14/2006 s. 9(c).
(c) in the case of a judge appointed on or after the commencement of section 8 of the Courts Amendment Act 1986 —upon the judge attaining the age of 70 years.
S. 14(2) amended by No. 6901 s. 3, substituted by No. 7066 s. 3(a), amended by Nos 7973 s. 3(a), 8883 s. 2(a), 9468 s. 3(b), 31/2021 s. 17(1).
(2) Every judge who—
S. 14(2)(a) substituted by No.
22/1995
s. 23(1).
(a) has attained—
(i) the age of 65 years; or
S. 14(2)(a)(ii) amended by No. 39/2003 s. 4(1)(a).
(ii) in the case of a judge appointed before the commencement of section 23 of the Judicial Remuneration Tribunal Act 1995 , the age of 60 years; or
S. 14(2)(a)(iii) inserted by No. 39/2003 s. 4(1)(b), amended by No. 34/2010 s. 3.
(iii) in the case of a judge to whom subsection (5)(ac) or subsection (5)(ad) applies who was appointed as a judge after the commencement of section 23 of the Judicial Remuneration Tribunal Act 1995 but who before that commencement had service that, by force of that subsection, counts as service in the office of judge under this Act, the age of 60 years—
and has served for not less than 10 years in the office of judge; or
S. 14(2)(b) substituted by No.
22/1995
s. 23(1).
(b) has served for not less than 20 years in the office of judge; or
S. 14(2)(c) inserted by No.
22/1995
s. 23(1).
(c) having been appointed before attaining the age of 60 years, has become afflicted with some permanent incapacity disabling him or her from the due execution of the office; or
S. 14(2)(d) inserted by No.
22/1995
s. 23(1).
(d) in the case of a judge appointed after attaining the age of 60 years but before the commencement of section 23 of the Judicial Remuneration Tribunal Act 1995 , has become afflicted with some permanent incapacity disabling him or her from the due execution of the office—
shall upon resignation or upon retirement as aforesaid from his office be entitled to a pension payable fortnightly at the rate per annum of sixty per centum of the annual salary—
(i) in the case of a chief judge—of the Chief Judge; and
S. 14(2)(ia) inserted by No. 31/2021 s. 17(1)(a).
(ia) in the case of a deputy chief judge—of the Deputy Chief Judge; and
S. 14(2)(ii) amended by No. 31/2021 s. 17(1)(b).
(ii) in the case of any other judge—of a judge other than the Chief Judge or the Deputy Chief Judge—
for the time being applicable pursuant to section 10.
Note to s. 14(2) inserted by No. 5/2013 s. 26(1).
Note
See sections 12D and 12F as to pension entitlements and appointment as a reserve judge.
S. 14(2A) inserted by No.
22/1995
s. 23(2).
(2A) A judge who—
(a) had attained the age of 60 years when appointed as a judge; and
(b) has attained the age of 70 years—
is entitled, upon resignation or retirement from office to a pension payable fortnightly at the proportion of the rate of the pension that would have been payable if he or she had served 10 years that is equal to the proportion of 10 years served as a judge.
S. 14(2B) inserted by No.
22/1995
s. 23(2).
(2B) A judge who—
(a) had attained the age of 60 years when appointed as a judge; and
(b) has become afflicted with some permanent incapacity disabling him or her from the due execution of his or her office—
is entitled, upon resignation or retirement from office, to a pension payable fortnightly at the rate of the pension that would have been payable under subsection (2A) if he or she had served until attaining the age of 70 years.
S. 14(3) amended by Nos 7066 s. 3(b), 7973 s. 3(b), 8883 s. 2(b), 9468 s. 3(c), 23/2008 s. 10(2)(a)(b).
(3) Upon the death—
(a) of any judge under this Act or the County Court Act 1957 ; or
(b) of any person who was formerly a judge under this Act or a judge of county courts under the County Court Act 1928 —
the partner of the judge shall until death or marriage or until the partner becomes the domestic partner of another person be entitled to a pension payable fortnightly at the rate of three-eighths of the annual salary for the time being payable—
(i) in the case of a chief judge or a former chief judge—of the Chief Judge; and
S. 14(3)(ia) inserted by No. 31/2021 s. 17(2)(a).
(ia) in the case of a deputy chief judge or a former deputy chief judge—of the Deputy Chief Judge; and
S. 14(3)(ii) amended by No. 31/2021 s. 17(2)(b).
(ii) in the case of any other judge or former judge—of a judge other than the Chief Judge or the Deputy Chief Judge.
S. 14(3) (Proviso) substituted by No. 23/2008 s. 10(2)(c).
Provided that no pension is payable to the partner of any former judge in any case where that partner married or became the domestic partner of the former judge after that judge's resignation or retirement, unless in the case of marriage, the spouse was the domestic partner of the judge immediately prior to that judge's resignation or retirement.
S. 14(3AA) inserted by No. 9468 s. 3(d).
(3AA) Where there are eligible children of a deceased judge and no pension is otherwise payable under subsection (2) or (3) to or in respect of that judge there shall be paid to such person or persons as the Attorney-General directs a pension in respect of each eligible child at the rate of pension applicable to the child under subsection (3AB).
S. 14(3AB) inserted by No. 9468 s. 3(d), amended by No. 23/2008 s. 10(2)(a).
(3AB) The pension applicable to each eligible child shall be the amount of the pension that would be payable to the partner of the judge if the partner was entitled to a pension under this Part divided by four or the number of eligible children (whichever is the greater).
S. 14(3AC) inserted by No. 9468 s. 3(d), amended by No. 23/2008 s. 11.
(3AC) "Eligible child in relation to a judge" means a child adopted child or stepchild of the judge or his or her partner—
(a) who is under the age of 16 years; or
(b) who—
(i) has attained the age of 16 years but is under the age of 25 years; and
(ii) is receiving full-time education at a school college or university.
S. 14(3AD) inserted by No. 3/2016 s. 28(1).
(3AD) If a dual commission holder resigns the office of Chief Judge but continues in the office of Judge of the Supreme Court, that person is taken not to have resigned or retired from the office of Chief Judge for the purposes of subsections (2), (2A) and (2B).
S. 14(3AE) inserted by No. 3/2016 s. 28(1).
(3AE) In the case of the death of a Chief Judge who is a dual commission holder, subsection (3) applies and section 83 of the Constitution Act 1975 does not apply.
S. 14(3AF) inserted by No. 3/2016 s. 28(1), amended by No. 1/2022 s. 37(1).
(3AF) If a dual commission holder as a judge of the County Court resigns the office of judge under this Act but continues in the office of Chief Magistrate, that person is taken not to have resigned or retired from the office of judge for the purposes of subsections (2), (2A) and (2B).
S. 14(3AG) inserted by No. 3/2016 s. 28(1), amended by No. 1/2022 s. 37(1).
(3AG) If a dual commission holder as a judge of the County Court simultaneously resigns the office of judge under this Act and the office of Chief Magistrate, that person is taken not to have resigned or retired from the office of judge for the purposes of subsections (2), (2A), and (2B), but section 10A of the Magistrates' Court Act 1989 may apply if the person would otherwise be entitled to a pension under that section.
S. 14(3AH) inserted by No. 3/2016 s. 28(1), amended by No. 1/2022 s. 37(2).
(3AH) In the case of the death of a Chief Magistrate who has been a dual commission holder as a judge of the County Court, subsection (3) does not apply and section 10A of the Magistrates' Court Act 1989 applies.
S. 14(3A) inserted by No. 7973 s. 3(c).
(3A) Unless the Governor in Council by Order published in the Government Gazette otherwise determines in any particular case the right of a judge to a pension under this section—
(a) shall cease upon his accepting appointment to any judicial office in or outside Victoria; and
S. 14(3A)(ab) inserted by No. 39/2003 s. 4(2), amended by No. 3/2005 s. 15(1).
(ab) shall be diminished by the amount of any pension to which he or she is entitled under the law of the Commonwealth or of another State or of the Northern Territory or the Australian Capital Territory, being a pension for which he or she qualified because of service that, by force of subsection (5)(ac) or (5)(ad), was or could have been counted as service in the office of judge under this Act; and
(b) shall be suspended while—
(i) he holds any office or place of profit under the Crown in right of the Commonwealth or of a State; or
S. 14(3A)(b)(ii) amended by No.
35/1996
s. 453(Sch. 1 item 15.5(a) (b)).
(ii) he is engaged in legal practice in any State or Territory of the Commonwealth or is employed by any legal practitioner in connexion with his practice in any such State or Territory:
Provided that this subsection does not apply to or in relation to a judge who resigned or retired before the 15th day of February, 1970.
S. 14(4) amended by Nos 19/1989 s. 7(i), 19/2001 s. 12.
(4) All pensions under this section and any payments of lump sums provided by the commutation of those pensions shall be payable out of the Consolidated Fund which is hereby appropriated accordingly.
S. 14(5) amended by No. 63/2013 s. 70.
(5) For the purposes of this section and section 14AAA—
S. 14(5)(aa) inserted by No. 3/2005
s. 8,
amended by Nos 24/2008 s. 49(a), 5/2013 s. 26(2).
(aa) if, before the repeal of section 11 by the Courts Legislation Amendment (Reserve Judicial Officers) Act 2013 , any judge or associate judge under this Act was immediately prior to his or her appointment—
(i) an acting judge of the court; or
(ii) an acting Judge of the Supreme Court—
his or her service as acting judge shall count as service in the office of judge or associate judge of the court (as the case may be);
(a) if any judge under this Act is or has been at any time after his appointment appointed to be an acting judge of the Supreme Court his service as an acting judge of the Supreme Court shall count as service in the office of judge under this Act but in the computation of pensions under this section the salary he was receiving immediately before his resignation retirement or death (as the case may be) shall in every case be deemed to be the salary then applicable to the office of judge under this Act;
S. 14(5)(ab) inserted by No.
43/1994
s. 54.
(ab) if any judge under this Act was immediately prior to his or her appointment Director of Public Prosecutions, Chief Crown Prosecutor or a Senior Crown Prosecutor, his or her service as Director of Public Prosecutions, Chief Crown Prosecutor or Senior Crown Prosecutor shall count as service in the office of judge under this Act;
S. 14(5)(aba) inserted by No. 68/2012 s. 8.
(aba) if any judge under this Act was, immediately prior to his or her appointment, the Chief Magistrate and his or her appointment as Chief Magistrate was made on or after 6 March 2001, his or her service as the Chief Magistrate shall count as service in the office of judge under this Act;
S. 14(5)(abb) inserted by No. 29/2015 s. 63(1).
(abb) if any judge under this Act was immediately prior to the judge's appointment Solicitor-General that person's service as Solicitor-General shall count as service in the office of judge under this Act;
S. 14(5)(ac) inserted by No. 39/2003 s. 4(3).
(ac) if any judge under this Act was immediately prior to his or her appointment—
S. 14(5)(ac)(i) amended by No. 68/2013 s. 11.
(i) a judge of the High Court of Australia or of a court created by the Parliament of the Commonwealth, other than the Federal Circuit Court of Australia; or
S. 14(5)(ac)(ii) amended by No. 29/2015 s. 63(2).
(ii) a judge of a court of another State or of the Northern Territory or the Australian Capital Territory, other than a Local Court, Magistrates' Court or equivalent court—
his or her service as such a judge shall count as service in the office of judge under this Act;
S. 14(5)(aca) inserted by No. 3/2016 s. 28(2).
(aca) if any judge under this Act was, immediately prior to the person's appointment, a Judge of the Supreme Court referred to in section 75(3) of the Constitution Act 1975 , the person's service as a Judge of the Supreme Court shall count as service in the office of judge under this Act;
S. 14(5)(ad) inserted by No. 3/2005 s. 15(2).
(ad) if any judge under this Act was immediately prior to his or her appointment—
S. 14(5)(ad)(i) amended by No. 24/2008 s. 49(b)(i).
(i) a master or associate judge of the court; or
S. 14(5)(ad)(ii) amended by Nos 24/2008 s. 49(b)(ii), 29/2015 s. 63(3).
(ii) a Master of the Supreme Court or, an Associate Judge of the Supreme Court, or a master or an associate judge (however described) of a court of another State, the Northern Territory or the Australian Capital Territory, other than a Local Court, Magistrates' Court or equivalent court—
his or her service as such shall count as service in the office of judge under this Act;
S. 14(5)(ae) inserted by No. 28/2013 s. 6.
(ae) if any judge under this Act was immediately prior to his or her appointment the Commissioner within the meaning of the Independent Broad-based Anti-corruption Commission Act 2011 or the Inspector within the meaning of the Victorian Inspectorate Act 2011 , his or her service as Commissioner or Inspector, as the case requires, shall count as service in the office of judge under this Act;
S. 14(5)(af) inserted by No. 3/2016 s. 28(3).
(af) the Chief Judge who is a dual commission holder is taken to not hold the office of Judge of the Supreme Court during the period of being a dual commission holder when counting service in the office of judge under this Act;
S. 14(5)(ag) inserted by No. 3/2016 s. 28(3), amended by No. 1/2022 s. 37(3).
(ag) if a judge under this Act has been a dual commission holder as Chief Magistrate, the person's service in the office of Chief Magistrate, whilst a dual commission holder, shall count as service in the office of judge;
S. 14(5)(ah) inserted by No. 3/2016 s. 28(3), amended by No. 1/2022 s. 37(3).
(ah) if a judge under this Act has been a dual commission holder as Chief Magistrate, the judge is taken to not hold the office of judge during the period of holding the dual commission when counting service in the office of judge;
(b) any reference to a judge under this Act or the County Court Act 1957 or under the County Court Act 1928 shall not be deemed to include a reference to a deputy judge or an acting judge.
S. 14(6) repealed by No. 7985 s. 2(1), new s. 14(6) inserted by No. 30/2005 s. 5.
(6) For the purposes of subsection (5)(ab), if a judge under this Act who immediately prior to his or her appointment held the office of Director of Public Prosecutions, Chief Crown Prosecutor or a Senior Crown Prosecutor (a relevant office ) had also held another one or two of those relevant offices immediately prior to, or successively prior to, his or her appointment to the last relevant office held by him or her, then his or her service in that other relevant office or those other relevant offices counts as service in the last of the relevant offices held by him or her.
S. 6A inserted by No. 29/2015 s. 63(4).
(6A) Without limiting subsection (6), for the purposes of subsections (5) and (6), if a judge under this Act who held a recognised service office immediately prior to the judge's appointment had also held another one or more recognised service offices immediately prior to, or successively prior to, that person's appointment to the last recognised service office held by that person, then that person's service in that other recognised service office or those other recognised service offices counts as service in the last recognised service office held by that person.
S. 6B inserted by No. 29/2015 s. 63(4).
(6B) For the purposes of this section—
"recognised service office" means an office specified in subsection (5) or (6) as counting as service in the office of judge under this Act.
S. 14(7) inserted by No. 23/2008 s. 12.
(7) For the purpose of regulation 65 of the Family Law (Superannuation) Regulations 2001 of the Commonwealth, the Minister on the advice of an actuary appointed by the Minister may from time to time determine the accrued benefit multiple.
S. 14(8) inserted by No. 23/2008 s. 12, amended by No. 38/2009 s. 21(1).
(8) Subject to subsections (12) and (13), the Minister must comply with subsections (10) and (11) if—
(a) a superannuation agreement which provides for a payment split; or
(b) a flag lifting agreement which provides for a payment split; or
(c) a splitting order—
is served on the Minister under Part VIIIB or VIIIAB of the Family Law Act 1975 of the Commonwealth.
S. 14(9) inserted by No. 23/2008 s. 12.
(9) Subsections (10) and (11) also apply to—
(a) a superannuation agreement which provides for a payment split; or
(b) a flag lifting agreement which provides for a payment split; or
(c) a splitting order—
which was served on the Minister under Part VIIIB of the Family Law Act 1975 of the Commonwealth before the commencement of section 9 of the Constitution Amendment (Judicial Pensions) Act 2008 if the non-member spouse's entitlements in respect of the superannuation interest have not been satisfied as at that commencement.
S. 14(9A) inserted by No. 38/2009 s. 21(2), amended by No. 38/2017 s. 79(1).
(9A) This section also applies to—
(a) a superannuation agreement which provides for a payment split; or
(b) a flag lifting agreement which provides for a payment split; or
(c) a splitting order—
which was served on the Minister under Part VIIIAB of the Family Law Act 1975 of the Commonwealth before the commencement of section 21 of the Superannuation Legislation Amendment Act 2009 if the non-member spouse's entitlements in respect of the superannuation interest have not been satisfied as at that commencement.
S. 14(10) inserted by No. 23/2008 s. 12.
(10) If the non-member spouse has not satisfied a relevant condition of release and the member spouse is not receiving a pension under this Act, the Minister must if the value of the non-member spouse's entitlement in respect of the superannuation interest at the particular time does not exceed the value of the member spouse's interest in the Fund—
(a) transfer a lump sum amount equal to the value of the non-member spouse's entitlement in respect of the superannuation interest at the time of the payment to an eligible superannuation plan nominated in writing by the non-member spouse within the specified period; or
(b) if the non-member spouse fails to nominate in writing an eligible superannuation plan within the specified period, transfer a lump sum amount equal to the value of the non-member spouse's entitlement in respect of the superannuation interest at the time of the payment to an eligible rollover fund selected by the Minister.
S. 14(11) inserted by No. 23/2008 s. 12.
(11) If the non-member spouse has satisfied a relevant condition of release or the member spouse is receiving a pension under this Act, the Minister must if the value of the non-member spouse's entitlement in respect of the superannuation interest at the particular time does not exceed the value of the member spouse's interest in the Fund—
(a) if so requested in writing by the non-member spouse within the specified period, pay the non-member spouse a lump sum amount equal to the value of the non-member spouse's entitlement in respect of the superannuation interest at the time of the payment; or
(b) if so requested in writing by the non-member spouse within the specified period, transfer a lump sum amount equal to the value of the non-member spouse's entitlement in respect of the superannuation interest at the time of the payment to an eligible superannuation plan nominated in writing by the non-member spouse; or
(c) if no request is received from the non-member spouse within the specified period, transfer a lump sum amount equal to the value of the non-member spouse's entitlement in respect of the superannuation interest at the time of the payment to an eligible rollover fund selected by the Minister.
S. 14(12) inserted by No. 23/2008 s. 12.
(12) Subsections (10) and (11) do not apply if—
(a) the member spouse's superannuation interest is an unsplittable interest; or
(b) a payment flag is operating in respect of the member spouse's superannuation interest; or
(c) the non-member spouse has served a waiver notice on the Minister under section 90MZA of the Family Law Act 1975 of the Commonwealth in respect of the member spouse's superannuation interest; or
(d) the member spouse's superannuation interest is a payment that is not a splittable payment under Part 2 of the Family Law (Superannuation) Regulations 2001 of the Commonwealth.
S. 14(13) inserted by No. 23/2008 s. 12.
(13) If the member spouse's superannuation interest is a pension under this Act due to a disability which is a splittable payment, the Minister may determine that subsections (10) and (11) do not apply.
S. 14(14) inserted by No. 23/2008 s. 12.
(14) If the non-member spouse serves a waiver notice on the Minister under section 90MZA of the Family Law Act 1975 of the Commonwealth in respect of the member spouse's superannuation interest, the Minister may make a payment to the non-member spouse not exceeding the value at a particular time of the non-member spouse's entitlement in respect of the superannuation interest less any payments previously made by the Minister to the non-member spouse in accordance with this section.
S. 14(15) inserted by No. 23/2008 s. 12.
(15) Despite anything to the contrary in this Act, if under subsection (10), (11) or (14) an amount is paid by the Minister to a non-member spouse or transferred by the Minister on behalf of a non-member spouse, the benefit of a member spouse must be reduced by the Minister in accordance with a methodology approved by the Minister, on the advice of an actuary appointed by the Minister.
S. 14(16) inserted by No. 23/2008 s. 12.
(16) On the application of an eligible person within the meaning of section 90MZB(8) of the Family Law Act 1975 of the Commonwealth, the Minister may provide information additional to the information required to be provided under section 90MZB of that Act if the Minister considers that the additional information is necessary to understand the member spouse's benefit entitlements.
S. 14(17) inserted by No. 23/2008 s. 12.
(17) The entitlement of a person to convert or commute a benefit or pension under this Act is not affected by the making of a payment or transfer under subsection (10), (11) or (14).
S. 14(18) inserted by No. 23/2008 s. 12.
(18) The Minister may charge reasonable fees in respect of—
(a) a payment split;
(b) a payment flag;
(c) flag lifting under a flag lifting agreement that does not provide for a payment split;
(d) an order under section 90MM of the Family Law Act 1975 of the Commonwealth terminating the operation of a payment flag;
(e) an application under section 90MZB of the Family Law Act 1975 of the Commonwealth for information about a superannuation interest;
(f) any other thing done by the Minister in relation to a superannuation interest covered by a superannuation agreement, flag lifting agreement or splitting order;
(g) the provision of information under subsection (16).
S. 14(19) inserted by No. 23/2008 s. 12.
(19) Fees charged under subsection (18) must not exceed the maximum levels of fees fixed by the Minister for the purposes of this section by notice published in the Government Gazette.
S. 14(20) inserted by No. 23/2008 s. 12.
(20) If the Minister charges a fee under subsection (18), the fee is payable—
(a) unless paragraph (b) applies, in the case of subsection (18)(a), (18)(b), (18)(c), (18)(d) or (18)(f), by the member spouse and the non-member spouse in equal parts;
(b) if the fee is in respect of a payment split under which the non-member spouse is entitled to be paid the whole of the amount of each splittable payment that becomes payable, by the non-member spouse;
(c) in the case of subsection (18)(e) or (18)(g), by the person who made the application.
S. 14(21) inserted by No. 23/2008 s. 12.
(21) For the purposes of this section, the Minister may, with such modifications as are necessary, adopt any specified standards made by Order in Council under section 92A of the State Superannuation Act 1988 for the purposes of Part 7A of that Act.
S. 14(22) inserted by No. 40/2010 s. 108.
(22) For the purposes of subsection (3), the definition of partner as substituted by section 107 of the Superannuation Legislation Amendment Act 2010 applies in respect of the entitlement to a pension of a partner of a judge or former judge only if the death of the judge or former judge occurs on or after the commencement of the substituting section.
S. 14(23) inserted by No. 16/2016 s. 193.
(23) For the purposes of this section, a reference to the resignation or retirement of a judge includes a reference to the removal of a judge from office by the Governor in Council under section 87AAB of the Constitution Act 1975 on the ground of proved incapacity if both Houses of the Parliament pray for the removal solely on the ground of proved incapacity.
S. 14(24) inserted by No. 16/2016 s. 193.
(24) A removal referred to in subsection (23) is taken to be a resignation or retirement due to the judge having become afflicted with some permanent incapacity disabling the judge from the due execution of the judge's office.
S. 14AAA inserted by No. 63/2013 s. 71.