1.1
On 3 December 2020, the Senate referred the Judges' Pensions Amendment (Pension Not Payable for Misconduct) Bill 2020 (the bill) to the Legal and Constitutional Affairs Legislation Committee (the committee) for inquiry and report by 5 April 2021. On 18 March 2021, the Senate granted an extension of time for reporting until 20 May 2021.
1.2
The referral to the committee followed a recommendation from the Selection of Bills Committee which presented multiple reasons for referral: to facilitate stakeholder engagement, give an opportunity for the profession to contribute, and look at the bill's impact within the profession.
Conduct of this inquiry
1.3
Details of the inquiry were advertised on the committee's webpage. The committee called for submissions to be received by 1 February 2021 and also wrote to a range of organisations inviting them to submit. The committee received six submissions, which are listed at Appendix 1. The committee held one public hearing in Canberra on 23 April 2021. The list of witnesses is provided at Appendix 2.
Acknowledgements
1.4
The committee thanks submitters and witnesses for the evidence they provided to this inquiry.
Note on references
1.5
In this report, references to Committee Hansard are to the proof transcript. Page numbers may vary between proof and official transcripts.
Structure of this report
1.6
This report consists of two chapters:
This chapter outlines the background and key provisions of the bill and provides administrative details relating to the inquiry.
Chapter 2 examines the key issues raised in evidence and provides the committee's view.
Purpose of the bill
1.7
The private senator's bill was introduced into the Senate on 6 October 2020 by Senator Rex Patrick. The bill would amend the Judges' Pensions Act 1968 (Judges' Pensions Act) to provide that a pension is not payable to a retired judge on account of serious misconduct while they were serving as a judge.
1.8
In his second reading speech, Senator Patrick stated that the bill would 'address an important deficiency' in the Judges' Pensions Act to:
impose on a retired Judge the same consequence for misbehaviour they would experience were they still…sitting and then removed from the Bench under section 72 of the Constitution.
1.9
Senator Patrick explained that the bill would operate retrospectively to ensure that judges are held accountable for any serious misconduct that may have occurred when they held their position but may only become apparent after retirement or departure from the bench.
1.10
When introducing the bill, Senator Patrick emphasised the need for the bill in the context of the findings from the investigation, initiated by the High Court of Australia, and undertaken by Dr Vivienne Thom AM, into the allegations of sexual harassment against former High Court Justice the Hon Dyson Heydon AC QC.
Background to the bill
Judges' Pensions Act 1968
1.11
The Judges Pensions Act governs the Judges Pensions Scheme. The Act covers the following officer holders who, under the Act, meet the definition of 'Judge':
Justices of the High Court;
Judges of the Federal Court (other than the Federal Magistrates Court or the Australian Military Court);
Judges of the Family Court (including the Family Court of Western Australia);
Persons who, under another Act, have the same status of a justice, or a judge, being:
presidential members of the Administrative Appeals Tribunal;
presidential members of Fair Work Australia;
Solicitors-General appointed before 31 December 1997; and
Judges of the Australian Capital Territory Supreme Court appointed before self-government.
1.12
Currently there are 96 judges eligible for a pension under the Judges' Pensions Act.
Payment of pensions to retired judges
1.13
Section 6 of the Judges' Pensions Act provides that a judge of a Federal Court, excluding the Federal Circuit Court of Australia, is ordinarily entitled to receive a retirement pension of 60 per cent of the appropriate current judicial salary of a serving judge, if at the time of their retirement, the judge has accrued 10 years of judicial service and is 60 years of age or older. A partial pension is available in circumstances where a judge has between six and 10 years of judicial service.
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Section 17 of the Act provides that, unless the Governor-General otherwise directs, a pension under the Act is not payable to a judge who has been removed under section 72 of the Constitution or under any similar provision in an Act.
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Section 72 of the Constitution states:
The Justices of the High Court and of the other courts created by the Parliament:
(i)shall be appointed by the Governor-General in Council;
(ii)shall not be removed except by the Governor-General in Council, on an address from both Houses of the Parliament in the same session, praying for such removal on the ground of proved misbehaviour or incapacity;
(iii) shall receive such remuneration as the Parliament may fix; but the remuneration shall not be diminished during their continuance in office.
Investigation commissioned by the High Court of Australia into allegations against a former High Court Justice
1.16
In March 2019, the High Court of Australia (High Court) was advised by a firm of solicitors of allegations of sexual harassment against former High Court Justice, the Hon Dyson Heydon AC QC. Subsequently, the High Court engaged Dr Vivienne Thom AM to undertake an investigation into the allegations raised in the correspondence from the firm of solicitors. Dr Thom's final report was presented to the Chief Executive and Principal Registrar (CE&PR) and the Chief Justice in March 2020. The investigation found that six former High Court staff members, who were judges' associates, were harassed by the Hon Dyson Heydon.
1.17
The independent investigation made six recommendations which were all adopted and acted upon by the High Court. In a public statement in June 2020, the Chief Justice expressed her deep concern at the investigation's findings and advised that a sincere apology had been made to the six women whose claims were borne out.
Key provisions of the bill
1.18
The bill would insert new section 17AAA into the Judges' Pensions Act which would require the cessation of the payment of a retired judge's pension where they have engaged in serious misconduct while serving as a judge.
1.19
The bill does not include a definition of 'serious misconduct'. The explanatory memorandum states:
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.
1.20
Proposed section 17AAA (2) stipulates that a cessation event occurs:
in relation to a person if each House of the Parliament passes, in the same session, a resolution that the person cease to be paid a pension under this Act because the retired Judge to which the pension relates had engaged in serious misconduct while the retired Judge was serving as a Judge.
1.21
According to the explanatory memorandum, the cessation event 'is similar in effect to section 72 of the Australian Constitution and it is intended to operate similarly'.
1.22
The bill would potentially operate retrospectively as the pension cessation provisions can be enlivened based on a retired judge's past conduct.
Consideration by other parliamentary committees
Senate Scrutiny of Bills Committee
1.23
The Scrutiny of Bills Committee (scrutiny committee) drew attention to the pension cessation provision which may apply retrospectively as it can be enlivened based on past conduct of a retired judge. The committee reiterated its 'long-standing scrutiny concern about provisions that have the effect of applying retrospectively, as it challenges a basic value of the rule of law that, in general, laws should only operate prospectively (not retrospectively)'. The committee emphasised its expectation that when proposed legislation would have a retrospective effect, the relevant explanatory materials 'should set out the reasons why retrospectivity is sought, and whether any persons are likely to be adversely affected and the extent to which their interests are likely to be affected'.
1.24
In light of the explanation provided in the explanatory memorandum, the scrutiny committee concluded as follows:
the committee leaves to the Senate as a whole the appropriateness of the proposed retrospective application of the pension cessation provision of the bill, which can be enlivened based on past conduct of a retired judge.
Parliamentary Joint Committee on Human Rights
1.25
The Parliamentary Joint Committee on Human Rights made no comment in relation to the bill.