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2019-2020
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
SENATE
JUDGES' PENSIONS AMENDMENT (PENSION NOT PAYABLE
FOR MISCONDUCT) BILL 2020
EXPLANATORY MEMORANDUM
(Circulated by authority of Senator Rex Patrick)
JUDGES' PENSIONS AMENDMENT (PENSION NOT PAYABLE FOR
MISCONDUCT) BILL 2020
OVERVIEW
This Bill will address a deficit in the current Judges' Pensions Act 1968 (Pensions Act), and in
particular the limitation that the Act only applies to Judges currently holding positions on the
bench.
The ability for a person, let alone a Judge of the High Court, to avoid any negative impact on
their employment and subsequently escape all consequences of their misbehaviour by the simple
happenstance that it was uncovered post retirement is grossly unfair, especially when they are in
receipt of a taxpayer funded statutory pension for life.
This Bill is intended to impose on a retired Judge the same consequence for misconduct in office
they would experience had they still been sitting. As the Pensions Act is currently framed, there
is an inequality between the outcomes for behaviour between a current sitting Judge and that of a
retired Judge where their behaviour only comes to light after their retirement. It further addresses
a perception that there is an incentive for the Judiciary to ensure that any misbehaviour goes
unaddressed or is kept hidden during their tenure so as to safeguard their position until retirement
and therefore protecting their pension.
Retrospective operation:
This Bill is retrospective in operation for the purpose of ensuring all past Judges are held
accountable for any serious misconduct done while they held their position and that only
becomes apparent after their retirement or departure from the Bench. This ensures equality so
that all living Judges that committed misconduct will be held accountable and face the same
consequences no matter if they are on the Bench or no longer on the Bench.
NOTES ON CLAUSES:
Clause 1: Short Title
1. Clause 1 is a formal provision specifying the short title of the Bill.
Clause 2: Commencement
2. The whole of the Act commences the day after this Act receives the Royal Assent.
Clause 3: Schedules
3. Each Act specified in a Schedule to this Act is amended or repealed as is set out in the
applicable items in the Schedule. Any other item in a Schedule to this Act has effect
according to its terms.
Schedule 1--Amendments
Judges' Pensions Act 1968
Item 1 - subsection 4(1)
4. Item 1 inserts a sign post to draw attention to a 'cessation event' defined in new
subsection 17AAA(2). This is a consequential amendment to item 2.
Item 2 - at the end of Part 2
5. Item 2 inserts new section 17AAA at the end of Part 2 of the Act. New section 17AAA
provides that a pension is not payable to a retired Judge on account of serious misconduct
while they were serving as a Judge.
6. New subsection 17AAA(1) prescribes that a pension is not payable the day after a
cessation event happens. This is not a discretionary provision.
7. New subsection 17AAA(2) defines 'cessation event'. The cessation event is similar in
effect to section 72 of the Australian Constitution and it is intended to operate similarly.
This provision empowers the Parliament to make a resolution that a retired Judge is not to
be paid their pension due to serious misconduct while the Judge was serving.
8. The intent of new section 17AAA is to ensure that a retired Judge is held to account for
their conduct while they were sitting on the bench.
9. Example one - a Judge that had engaged in serious misconduct retires before the Judge's
removal under section 72 of the Constitution. Currently, where a Judge retires prior to
being removed they are still entitled to being paid a pension. This Bill will ensure that a
Judge cannot escape the operation of section 17 of the Act by retiring prior to their
removal as a Judge.
10. Example two - a Judge's serious misconduct is discovered post retirement. Further, this
Bill will also provide a mechanism to hold a retired Judge to account for behaviours
conducted while they were a Judge and that only come to light after their retirement.
Where this occurs the Act as it currently stands is unable to hold the retired Judge to
account to a similar extent to that of a sitting Judge. This Bill will address the inherent
unfairness.
11. The phrase 'serious misconduct' is intended to provide the Parliament with maximum
discretion to determine the scope, pervasiveness and impact of a Judge's behaviour when
determining what serious misconduct is.
12. The adoption of a new phrase, 'serious misconduct' is taken from the Governor-General
Amendment (Cessation of Allowances in the Public Interest) Bill 2019 and the Fair Work
Act 2009. Serious misconduct in the Governor-General Bill captures acts and omissions,
and in the Fair Work Act and regulations the phrase is prescribed to have its ordinary
meaning.
13. This amendment does not alter the existing independence of the High Court or the
Federal Court and seeks to ensure consistency with the existing operation of the
constitutional powers that prohibits a pension to be paid to a person who has been
removed as a Judge.
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Judges' Pensions Amendment (Pension Not Payable for Misconduct) Bill 2020
This Bill is compatible with the human rights and freedoms recognised or declared in the
international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act
2011.
Overview of the Bill
This Bill is intended to impose on a retired Judge the same consequence for their behaviour as a
sitting Judge would receive had they been removed from the Bench under section 72 of the
Constitution.
Human rights implications
This Bill does not engage any of the applicable rights or freedoms.
Conclusion
This Bill is compatible with human rights as it does not raise any human rights issues.
Senator Rex Patrick