An Act to make provision for Pensions for Judges and their
Families
1
Short title [see
Note 1]
This Act may be cited as the Judges’
Pensions Act 1968.
2
Commencement [see
Note 1]
This Act shall come into operation on
the day on which it receives the Royal Assent.
3
Repeal
(1) The following Acts are repealed:
Judges’ Pensions Act 1948;
Judges’ Pensions Act 1956;
Judges’ Pensions Act 1958;
Judges’ Pensions Act 1961.
(2) The repeal effected by the last preceding
subsection does not affect the operation of:
(a) any amendment made by an Act
repealed by that subsection to an Act that is not so repealed; or
(b) any provision for the citation of
an Act as amended by such an amendment.
4
Interpretation
(1) In this Act, unless the contrary
intention appears:
appropriate current judicial salary, in
relation to a Judge who has retired or died, means:
(a) in the case of a Judge other than
a Judge referred to in paragraph (b), (c) or (d)—salary at the rate that
would be payable to the Judge if he had not retired or died;
(b) in
the case of a Judge who was:
(i) the Chief Judge of the
Commonwealth Court of Conciliation and Arbitration;
(ii) the Chief Judge of the
Australian Industrial Court;
(iii) the Chief Justice of
the Supreme Court of Papua New Guinea; or
(iv) the
Chief Justice of Papua New Guinea;
the salary for the time being
payable to the Chief Judge of the Federal Court of Australia;
(c) in the case of a Judge who was the
Deputy Chief Justice of Papua New Guinea—salary at a rate equal to the mean of
the rates of the salaries referred to in paragraphs (b) and (d); and
(d) in the case of a Judge who was:
(i) a Judge, other than
the Chief Judge, of the Commonwealth Court of Conciliation and Arbitration;
(ii) a Judge, other than
the Chief Judge, of the Australian Industrial Court;
(iii) a Judge of the Federal
Court of Bankruptcy; or
(iv) a
Papua New Guinea Judge, other than a Judge referred to in paragraph (b)
or (c);
the salary for the time being
payable to a Judge, other than the Chief Judge, of the Federal Court of
Australia.
child means a child or an adopted child:
(a) who is under the age of 16 years;
or
(b) who:
(i) has reached 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.
child of a marital relationship means:
(a) a child born of a marital
relationship; or
(b) a child adopted by the persons
engaged in that relationship during the period of the relationship.
eligible child, in relation to a Judge or
retired Judge who has died, has the meaning given by section 4AA.
Judge means:
(a) a Justice or Judge of a federal
court (other than the Federal Magistrates Court or the Australian Military
Court);
(b) a person who, by virtue of an Act,
has the same status as a Justice or Judge of a court referred to in paragraph (a);
or
(ba) a person who was a Judge of the
Supreme Court of the Australian Capital Territory immediately before the
commencement of the A.C.T. Supreme Court (Transfer) Act 1992; or
(c) a Papua New Guinea Judge.
Papua New Guinea Judge means a Judge of the
Supreme Court of Papua New Guinea who was first appointed as such a Judge
before 1 December 1973.
period of exempt
service:
(a) in relation to a Judge who has
prior judicial service—means any period in that service in respect of which no
superannuation contributions surcharge was assessed to be payable on the
Judge’s surchargeable contributions under the Superannuation Contributions
Tax (Assessment and Collection) Act 1997; or
(b) in relation to a person:
(i) who is a Judge because
of paragraph (b) of the definition of Judge in this
subsection; or
(ii) who, being a
presidential member of the Administrative Appeals Tribunal, is taken to be a
Judge for the purposes of this Act because of repealed section 16 of the Administrative
Appeals Tribunal Act 1975 (including that section as it continues to apply
because of item 34 of Schedule 1 to the Administrative Appeals
Tribunal Amendment Act 2005);
and the period of whose service
as a Judge began before 21 August 1996—means the part of that period of
service before that date.
period of service as a Judge has a meaning
affected by subsection (2).
prior judicial service,
in relation to a Judge or retired Judge, means:
(a) service
as a Judge or acting Judge of a court of a State or of the Supreme Court of
Papua New Guinea;
(ab) service as a Judge or acting Judge
of the Supreme Court of the Northern Territory, including that Court as in
existence at any time before the commencement of the Northern Territory
Supreme Court (Repeal) Act 1979;
(ac) service as a Judge or acting Judge
of the Supreme Court of the Australian Capital Territory;
(b) service, including acting service,
in a State office the holder of which may qualify for a pension or retiring
allowance under the law of a State relating to pensions or retiring allowances
payable to retired Judges;
(c) service in the office of Coal
Industry Tribunal referred to in the Coal Industry Act 1946‑1966;
or
(d) service
before the commencement of the Northern Territory Supreme Court Act
1961 as the Judge or an acting Judge of the Northern Territory;
being service prior to his appointment as a Judge or, if
he has been appointed as a Judge more than once, before the last such
appointment, but does not include service as a Justice of the Peace or
Magistrate.
qualifying period for a pension, in relation
to a person who has served as a Judge, has the meaning given by subsection (3).
relevant pension, in relation to a Judge who
has died, means the pension that would have been payable to the Judge if the
Judge had retired on the date of his or her death and, in a case where subsection (1)
of section 6 would not have been applicable in relation to that retirement,
the Attorney‑General had certified that that retirement was due to
permanent disability.
retired Judge means a person who has been a
Judge and is or has been in receipt of a pension under this Act.
retires, in relation to a Judge, means ceases
to be a Judge otherwise than by death, and retirement has a
corresponding meaning (see also sections 4B and 5).
salary means salary at the rate determined
under the Judicial and Statutory Officers (Remuneration and Allowances) Act
1984 and the Remuneration Tribunal Act 1973:
(a) excluding any allowances that are
paid in lieu of any other entitlement; and
(b) if any arrangements have been
entered into for any amount of the rate of remuneration (other than an
allowance covered by paragraph (a)) to be provided in the form of another
benefit—including that amount.
Scheme means the scheme constituted by this
Act for the provision of retirement and other benefits to and in respect of
Judges.
superannuation contributions surcharge has
the same meaning as in the Superannuation Contributions Tax (Assessment and
Collection) Act 1997.
Supreme Court of Papua New Guinea includes a
court having, after the attainment by Papua New Guinea of the status of an
independent sovereign state, unlimited jurisdiction in civil or criminal matters
in that state.
surcharge debt account, in relation to a
person who has served as a Judge, means the surcharge debt account that was
kept for the person (while he or she was serving as a Judge) under section 16
of the Superannuation Contributions Tax (Assessment and Collection) Act 1997.
(2) If a Judge has had prior judicial
service, the period of that service is to be added to, and is taken to be part
of, the period of his or her service as a Judge.
(3) The qualifying period for a pension,
in relation to a person who has served as a Judge, is:
(a) if the period of the person’s
service as a Judge started when the person was not yet 50—a period equal to the
number of years worked out by using the formula:
(b) if the period of the person’s
service as a Judge started after the person had turned 50 but before he or she
had turned 60—a period of 10 years; or
(c) if the period of the person’s
service as a Judge started after the person had turned 60—a period equal to the
number of years worked out by using the formula:
where:
age at start of period means the person’s age
at the start of the period of his or her service as a Judge.
4AA
Meaning of eligible child
For the purposes of this Act, a child is
an eligible child of a Judge or retired Judge who has died (deceased
Judge) if:
(a) the child is a child of the
deceased Judge; or
(b) the Attorney‑General is of
the opinion that:
(i) at the time of the
death of the deceased Judge, the child was wholly or substantially dependent on
the deceased Judge; or
(ii) but for the death of
the deceased Judge, the child would have been wholly or substantially dependent
on the deceased Judge.
4AB
Marital relationship
(1) For the purposes of this Act, a person
had a marital relationship with another person at a particular
time if the person ordinarily lived with that other person as that other
person’s husband or wife on a permanent and bona fide domestic basis at
that time.
(2) For the purpose of subsection (1), a
person is to be regarded as ordinarily living with another person as that other
person’s husband or wife on a permanent and bona fide domestic basis at
a particular time only if:
(a) the person had been living with
that other person as that other person’s husband or wife for a continuous
period of at least 3 years up to that time; or
(b) the
person had been living with that other person as that other person’s husband or
wife for a continuous period of less than 3 years up to that time and the
Attorney‑General, having regard to any relevant evidence, is of the
opinion that the person ordinarily lived with that other person as that other
person’s husband or wife on a permanent and bona fide domestic basis at
that time;
whether or not the person was legally married to that
other person.
(3) For the purposes of this Act, a marital
relationship is taken to have begun at the beginning of the continuous period
mentioned in paragraph (2)(a) or (b).
(4) For the purpose of subsection (2),
relevant evidence includes, but is not limited to, evidence establishing any of
the following:
(a) the person was wholly or
substantially dependent on that other person at the time;
(b) the persons were legally married
to each other at the time;
(c) the persons had a child who was:
(i) born of the
relationship between the persons; or
(ii) adopted by the persons
during the period of the relationship;
(d) the persons jointly owned a home
which was their usual residence.
(5) For the purposes of this section, a
person is taken to be living with another person if the Attorney‑General
is satisfied that the person would have been living with that other person
except for a period of:
(a) temporary absence; or
(b) absence because of special
circumstances (for example, absence because of the person’s illness or
infirmity).
4AC Spouse
who survives a deceased Judge
(1) In this section:
deceased Judge means a person who was, at the
time of his or her death, a Judge or retired Judge.
(2) For the purposes of this Act, a person is
a spouse who survives a deceased Judge if:
(a) the person had a marital
relationship with the deceased Judge at the time of the death of the deceased
Judge (the death); and
(b) in
the case of a deceased Judge who was a retired Judge at the time of the death:
(i) the
marital relationship began before the retired Judge became a retired Judge; or
(ii) the marital
relationship began after the retired Judge became a retired Judge but before
the retired Judge reached 60; or
(iii) in the case of neither
subparagraph (i) nor (ii) applying—the marital relationship had continued
for a period of at least 5 years up to the time of the death.
(3) In spite of subsection (2), a person
is taken to be a spouse who survives a deceased Judge if:
(a) the person had previously had a
marital relationship with the deceased Judge; and
(b) the person did not, at the time of
the death, have a marital relationship with the deceased Judge but was legally
married to the deceased Judge; and
(c) in the case of a marital
relationship that began after the deceased person became a retired Judge and
reached 60—the relationship began at least 5 years before the deceased person’s
death; and
(d) in the Attorney‑General’s
opinion, the person was wholly or substantially dependent upon the deceased
Judge at the time of the death.
4A
Certain absences to be included in service
It is declared for the avoidance of
doubt that:
(a) for the purposes of the
application of this Act to or in respect of a person who is, or has at any time
been, a Judge, any period in which the person is or was authorised to make
himself or herself unavailable to perform his or her duties as a Judge shall be
deemed to be, or to have been, part of the period of the person’s service as a
Judge; and
(b) for the purposes of the
application of this Act to or in respect of a person who holds, or has at any
time held, an office or appointment by virtue of which this Act applies or
applied to or in respect of the person as if the person were a Judge, any
period in which the person is or was authorised to make himself or herself
unavailable to perform his or her duties as the holder of that office or
appointment shall be deemed to be, or to have been, part of the period of the
person’s service in that office or appointment.
4B
Consecutive appointments
(1) If:
(a) a person’s appointment as a Judge
terminates; and
(b) a
new appointment of the person as a Judge takes effect immediately after the
termination;
the person is taken, for the purposes of this Act, not to
retire when the earlier appointment terminates.
(2) This section applies to the termination
of an appointment however it occurs (whether because of resignation or because
of the expiration of the term of the appointment or otherwise).
5
Service in more than one judicial office
(1) For the purposes of this Act, a Judge is
taken not to have retired so long as he or she continues:
(a) to hold any office as a Judge; or
(b) to hold any judicial office in
relation to a Territory that is remunerated otherwise than on a part‑time
basis.
(2) Where, during any period (whether before
or after the commencement of this Act), a person has held two or more offices
as a Judge, his service during that period shall be taken into account for the
purposes of this Act in the same way as if, during that period, he had held one
office as a Judge only.
6
Pensions of Judges
(1) Where:
(a) a Judge, other than a Papua New
Guinea Judge, who has attained the age of 60 years; or
(b) a Papua
New Guinea Judge who has attained the age of 55 years;
retires after serving as a Judge for not less than 10
years, he or she is entitled to a pension in accordance with subsection 6A(2)
or 6B(2).
(2) Where a Judge, not being a Judge to whom subsection (1)
applies, retires, and the Attorney‑General certifies that the retirement
is due to permanent disability or infirmity, he or she is entitled to a pension
in accordance with subsection 6A(2) or 6B(2).
(2AA) A Judge (not being a Judge to whom subsection (1)
applies) who has retired may apply to the Attorney‑General for a
certificate under subsection (2) that his or her retirement was due to
permanent disability or infirmity and, upon receipt of that application, the
Attorney‑General shall:
(a) if he or she is satisfied that the
retirement of the Judge was due to permanent disability or infirmity—so certify
under subsection (2); or
(b) if he or she is not so
satisfied—refuse so to certify.
(2A) Where a Papua New Guinea Judge, other than
a Judge to whom subsection (1) or (2) applies, retires and is not re‑appointed
as a Judge of the Supreme Court of Papua New Guinea, he or she is entitled:
(a) if the Attorney‑General
certifies that he or she is satisfied that his or her services as such a Judge
were no longer required—to a pension in accordance with subsection 6A(2) or
6B(2); and
(b) in any other case—to a pension in
accordance with subsection 6A(3) or 6B(2).
(2B) Notwithstanding paragraph (b) of subsection (2A),
where the Governor‑General determines that, by reason of special
circumstances, a retired Judge who would, but for this subsection, be entitled
under subsection (2A) to a pension in accordance with subsection 6A(3) or
6B(2) should receive a pension in accordance with subsection 6A(2) or 6B(2),
the retired Judge is entitled to receive a pension accordingly.
(2D) Where:
(a) a Judge, whether by reason of the
terms of his or her appointment or otherwise, is to cease to hold office as a
Judge upon his or her attaining a particular age;
(b) he or she ceases to be a Judge
upon his or her attaining that age;
(c) at the time of his or her so
ceasing, he or she had served as a Judge for not less than 6 years; and
(d) he
or she is not a person to whom subsection (1), (2), (2A) or (2B) applies;
he or she is entitled to a pension in accordance with
subsection 6A(4) or 6B(2).
6A
Rate of pension—Judge’s surcharge debt amount not in debit
(1) This section applies to a Judge if the
Judge’s surcharge debt account is not in debit when a pension becomes payable
to him or her.
Note: For surcharge debt account see
subsection 4(1).
(2) If the Judge is entitled to a pension
because of subsection 6(1) or (2) or paragraph 6(2A)(a), the annual rate of the
pension is 60% of the appropriate current judicial salary.
Note: For appropriate current judicial salary
see subsection 4(1).
(3) If the Judge
is entitled to a pension because of paragraph 6(2A)(b), the annual rate of
pension is worked out by using the formula:
where:
A means 60% of the appropriate current
judicial salary.
B means:
(a) the sum of the total number of
years (including a fraction of a year) of his or her service as a Judge and the
total number of years (including a fraction of a year) that the Attorney‑General
certifies to be the period, or aggregate of the periods, (if any) of leave in
respect of that service due to the Judge immediately before his or her
retirement; or
(b) 10;
whichever is the less.
Note: For appropriate current judicial salary
see subsection 4(1).
(4) If the Judge is entitled to a pension
because of subsection 6(2D), the annual rate of that pension is:
(a) 0.5% of the appropriate current
judicial salary for each completed month of his or her service as a Judge; or
(b) 60% of the appropriate current
judicial salary;
whichever is the lesser rate.
Note: For appropriate current judicial salary
see subsection 4(1).
6B
Rate of pension—Judge’s surcharge debt account in debit
(1) This section applies to a Judge if the
Judge’s surcharge debt account is in debit when a pension becomes payable to
him or her.
Note: For surcharge debt account see
subsection 4(1).
(2) The annual rate of the pension to which
the Judge is entitled is:
(a) if the
period of his or her service as a Judge does not include a period of exempt
service—the rate worked out by using the formula:
(b) if the period of his or her
service as a Judge includes a period of exempt service that is less than his or
her qualifying period for a pension—the rate worked out by using the formula:
(c) if the period of his or her
service as a Judge includes a period of exempt service that is equal to or
longer than his or her qualifying period for a pension—a rate equal to BP;
where:
BP (basic pension) is the annual rate of the
pension that would be payable to the Judge if his or her surcharge debt account
were not in debit when the pension becomes payable.
E means the number of years in the Judge’s
period of exempt service.
Q means the number of years in the Judge’s
qualifying period for a pension.
relevant period, in relation to a Judge,
means:
(a) if paragraph (b) does not
apply—the Judge’s period of service as a Judge; or
(b) if the Judge’s period of service
as a Judge began before 21 August 1996—that part of the period of service
that began on that date.
SCS1 means the rate of superannuation
contributions surcharge that applies to the Judge for financial year 1 included
in the relevant period in relation to him or her, and SCS2 and SCSy each have a
corresponding meaning.
Y means:
(a) if paragraph (b) does not
apply—the number of financial years included in the relevant period in relation
to the Judge; or
(b) if the Judge becomes entitled to a
pension because the Attorney‑General certifies under subsection 6(2) that
the Judge’s retirement is due to permanent disability or infirmity—the number
of financial years included in the qualifying period for a pension in relation
to the Judge, less the number of years in the Judge’s period of exempt service.
Note: For qualifying period for a pension
see subsection 4(3) and for period of exempt service see
subsection 4(1).
6C
Commuting superannuation surcharge debt
(1) This section applies to a Judge if:
(a) the Judge retires; and
(b) on retirement, the Judge becomes
entitled to a pension in accordance with subsection 6B(2).
(2) The Judge may, within a period of 2
months after retirement, give the Secretary to the Department a written notice
electing to have his or her pension calculated under this section, rather than
subsection 6B(2).
(3) If a Judge makes an election under this
section, the Judge’s annual rate of pension is worked out using the following
method statement:
Method statement
Step 1. Work out the reduction
% using the formula:
where:
age factor
means the age factor for the Judge on the day on which the pension becomes
payable (see subsection (4)).
amount of
surcharge debt means the amount by which the Judge’s surcharge debt
account is in debit on the day on which the pension becomes payable.
basic pension
on retirement means the annual rate of the pension that would be
payable to the Judge on retirement if his or her surcharge debt account were
not in debit when the pension becomes payable.
Step 2. Work out the
Judge’s annual rate of pension using the following formula:
where:
basic pension
means the annual rate of pension that would be payable to the Judge if his or
her surcharge debt account were not in debit when the pension became payable.
(4) The regulations may prescribe the age
factor, or the method for working out the age factor, for the purposes of step
1 of the method statement in subsection (3).
7
Pension to spouse on death of Judge
(1) Where a Judge dies leaving a spouse, a
pension shall be paid to the spouse at a rate equal to 62.5% of the rate of the
relevant pension in relation to the Judge.
(2) If:
(a) but for this subsection, the rate
of the relevant pension in relation to the Judge would have been worked out
under subsection 6B(2); and
(b) the spouse gives the Secretary to
the Department a written notice within 2 months after the death of the Judge
electing to have the relevant pension worked out under section 6C,
rather than subsection 6B(2);
the rate of the relevant pension is taken to be the rate
worked out under section 6C, rather than the rate worked out under
subsection 6B(2).
8
Pension to spouse on death of retired Judge
(1) If the retired Judge dies leaving a
spouse, a pension shall be paid to the spouse at a rate equal to 62.5% of the
rate of the pension that would have been payable to the retired Judge if he or
she had not died.
8A
Restoration of pension entitlement if lost due to remarriage
(1) If a person’s pension under section 7
or 8 ceased to be payable before the commencement day because the person
remarried, the person may apply to the Attorney‑General for the pension
to be restored.
(2) If the Attorney‑General is
satisfied that:
(a) the person is in need; or
(b) the
restoration of the person’s pension is otherwise justified;
the Attorney‑General may direct in writing that the
person’s pension is to be restored.
(3) The Attorney‑General may direct
that the person’s pension is to be restored from a day before the application
day if he or she is satisfied that there are special circumstances that justify
restoration of the pension from that earlier day.
(4) The Attorney‑General must not
specify a day under subsection (3) that is before the commencement day.
(5) If the Attorney‑General gives a
direction under subsection (2), the person’s pension is restored:
(a) from and including the day
specified in the direction; or
(b) if no day is specified in the
direction, from and including the application day.
(6) In this section:
application day means the day on which the
application under subsection (1) was made.
commencement day means the day on which the Law
and Justice Legislation Amendment Act (No. 2) 1992 commences.
8B
Notification of decision
(1) If the Attorney‑General decides not
to restore a person’s pension under section 8A, the Attorney‑General
must give the person written notice of that decision.
(2) A notice
under subsection (1) must include:
(a) reasons for the decision; and
(b) notification of the applicant’s
entitlement to apply for review of the decision under section 17A.
9
Pension in respect of children on death of Judge
(1) Where a Judge dies leaving a spouse,
there shall, in addition to any pension that is payable to the spouse under
section 7, be paid to the spouse, in respect of any eligible child, or any
eligible children, of the Judge, a pension at a rate equal to the applicable
percentage of the rate of the relevant pension in relation to the Judge.
(2) For the purposes of subsection (1),
the applicable percentage is:
(a) where there is one eligible
child—12.5%;
(b) where there are 2 eligible
children—25%; or
(c) where there are 3 or more eligible
children—37.5%.
(3) If:
(a) but
for this subsection, the rate of the relevant pension in relation to the Judge
would have been worked out under subsection 6B(2); and
(b) the spouse gives the Secretary to
the Department a written notice within 2 months after the death of the Judge
electing to have the relevant pension worked out under section 6C, rather
than subsection 6B(2);
the rate of the relevant pension is taken to be the rate
worked out under section 6C, rather than the rate worked out under
subsection 6B(2).
10
Pension in respect of children on death of retired Judge
(1) Subject to this section, where a retired
Judge dies leaving a spouse, there shall, in addition to any pension that is
payable to the spouse under section 8, be paid to the spouse, in respect
of any eligible child, or any eligible children, of the retired Judge, a
pension at a rate equal to the applicable percentage of the rate of the pension
that would have been payable to the retired Judge if he or she had not died.
(1A) For the purposes of subsection (1),
the applicable percentage is:
(a) where there is one eligible
child—12.5%;
(b) where there are 2 eligible
children—25%; or
(c) where there are 3 or more eligible
children—37.5%.
(2) If a retired Judge entered into a marital
relationship:
(a) after retirement; and
(b) after the retired Judge reached
the age of 60; and
(c) less
than 5 years before the retired Judge died;
pension is not, upon the retired Judge’s death, payable
under this section in respect of a child of that marital relationship.
11
Pension in respect of children on death of spouse
(1) Subject to this section, where the spouse
of a Judge or retired Judge, being a spouse who became entitled upon the death
of the Judge or retired Judge to a pension under this Act, has died, there
shall be paid, in respect of any eligible child, or any eligible children, of
the Judge or retired Judge, a pension at a rate equal to the applicable
percentage of the rate of:
(a) in the case of the spouse of a
Judge other than a retired Judge—the relevant pension in relation to the Judge;
or
(b) in the case of the spouse of a
retired Judge—the pension that would have been payable to the retired Judge if
he or she had not died.
(2) For the purposes of subsection (1),
the applicable percentage is:
(a) where there is one eligible child—45%;
(b) where there are 2 eligible
children—80%;
(c) where there are 3 eligible
children—90%; or
(d) where there are 4 or more eligible
children—100%.
(2A) If:
(a) but for this subsection, the rate
of the relevant pension in relation to the Judge would have been worked out
under subsection 6B(2); and
(b) within 2 months after the Attorney‑General
determines under section 13 to whom the pension is payable, that person
gives the Secretary to the Department a written notice electing to have that
rate worked out under section 6C, rather than subsection 6B(2);
the rate of the relevant pension is taken to be the rate
worked out under section 6C, rather than the rate worked out under
subsection 6B(2).
(3) If a retired Judge entered into a marital
relationship:
(a) after retirement; and
(b) after the retired Judge reached
the age of 60; and
(c) less
than 5 years before the retired Judge died;
pension is not, upon the death of the person with whom the
retired Judge had that relationship, payable under this section in respect of a
child of that marital relationship.
12
Pension in respect of children on death of Judge or retired Judge when spouse’s
pension not payable
(1) Subject to this section, where a Judge or
retired Judge has died without leaving a spouse who became entitled, upon the
death of the Judge or retired Judge, to a pension under this Act, there shall
be paid in respect of any eligible child, or any eligible children, of the
Judge or retired Judge, a pension at a rate equal to the applicable percentage
of the rate of:
(a) in the case of a Judge other than
a retired Judge—the relevant pension in relation to the Judge; or
(b) in the case of a retired Judge—the
pension that would have been payable to the retired Judge if he or she had not
died.
(2) For the purposes of subsection (1),
the applicable percentage is:
(a) where there is one eligible
child—45%;
(b) where there are 2 eligible
children—80%;
(c) where there are 3 eligible
children—90%; or
(d) where there are 4 or more eligible
children—100%.
(2A) If:
(a) but for this subsection, the rate
of the relevant pension in relation to the Judge would have been worked out
under subsection 6B(2); and
(b) within 2 months after the Attorney‑General
determines under section 13 to whom the pension is payable, that person
gives the Secretary to the Department a written notice electing to have the
relevant pension worked out under section 6C, rather than subsection
6B(2);
the rate of the relevant pension is taken to be the rate
worked out under section 6C, rather than the rate worked out under
subsection 6B(2).
(3) If a retired Judge entered into a marital
relationship:
(a) after retirement; and
(b) after the retired Judge reached
the age of 60; and
(c) less than 5 years before the
retired Judge died;
pension is not, upon the retired Judge’s death, payable
under this section in respect of a child of that marital relationship.
12A
Benefit payable where Judge ceases to hold office or dies on or after 1 July 2006
Scope
(1) This section applies if:
(a) a person who is a Judge ceases
otherwise than by death to be a Judge on or after 1 July 2006 and no pension is payable to the person or to a spouse or an eligible child of the person;
or
(b) a person who is, or has previously
been, a Judge dies on or after 1 July 2006 without leaving a spouse or
eligible child; or
(c) a person who is, or has previously
been, a Judge has died leaving a spouse or spouses or an eligible child or
eligible children and:
(i) the pension or
pensions payable to the spouse or spouses or the child or children have ceased
to be payable; and
(ii) the last such pension
that ceased to be payable so ceased on or after 1 July 2006;
and, on the last day on which the person held office as a
Judge, the person was not a qualified employee (within the meaning of the Superannuation
(Productivity Benefit) Act 1988).
Benefit
(2) Subject to subsection (3), there is
payable to the person or, if the person has died, to the personal
representative of the person an amount of benefit equal to the sum of the
following amounts:
(a) the total of the minimum amounts
that the Commonwealth would have had to contribute to a complying
superannuation fund or scheme for the benefit of the person in order to avoid
having any individual superannuation guarantee shortfalls in respect of the
person if it were assumed that:
(i) the person was an
employee of the Commonwealth (within the meaning of the Superannuation
Guarantee (Administration) Act 1992) in his or her capacity as a Judge and
had never been an employee of the Commonwealth (within the meaning of that Act)
in any other capacity; and
(ii) this Act had not been
enacted; and
(iii) those contributions
were made on a monthly basis;
(b) the interest that would have
accrued on the contributions covered by paragraph (a) if it were assumed
that interest on those contributions had accrued in accordance with the method
set out in a determination made by the Minister under subsection (6).
Personal representatives
(3) If an amount of benefit is payable to the
personal representative of the person under subsection (2), that amount is
to be reduced by the sum of the amounts of the pensions (if any) that were paid
to the person or any spouse or eligible child of the person under this Act.
(4) If an amount of benefit is payable under subsection (2)
to the personal representative of the person and no personal representative can
be found, the amount is to be paid to any individual or individuals that the
Minister determines.
Appropriation
(5) A benefit under subsection (2) is
payable out of the Consolidated Revenue Fund, which is appropriated
accordingly.
Interest method determination
(6) The Minister must, by writing, determine
a method for the purposes of paragraph (2)(b).
(7) A method determined under subsection (6)
may provide for different interest rates for different periods.
(8) A method determined under subsection (6)
may be expressed to relate to a period that began before the determination was
made.
(9) A determination under subsection (6)
takes effect on the later of the following:
(a) the day after the 15th sitting day
of the House of Representatives after a copy of the determination is tabled in
that House;
(b) the day after the 15th sitting day
of the Senate after a copy of the determination is tabled in the Senate.
(10) The Minister must cause a copy of a
determination under subsection (6) to be tabled in each House of the
Parliament within 15 sitting days of that House after the determination is
made.
(11) If either House of the Parliament, within
15 sitting days of that House after a copy of a determination under subsection (6)
has been tabled in that House, passes a resolution disapproving of the
determination, the determination does not come into operation.
(12) A determination under subsection (6)
may be varied, but not revoked, in accordance with subsection 33(3) of the Acts
Interpretation Act 1901.
(13) Subsection (12) does not limit the
application of subsection 33(3) of the Acts Interpretation Act 1901 to
other instruments under this Act.
(14) A determination under subsection (6)
is not a legislative instrument for the purposes of the Legislative
Instruments Act 2003.
(15) The Minister must not exercise a power
conferred by this section in a manner that is inconsistent with paragraph 72(iii)
of the Constitution.
Definitions
(16) In this section:
complying superannuation fund or scheme has
the same meaning as in the Superannuation Guarantee (Administration) Act
1992.
individual superannuation guarantee shortfall
has the same meaning as in the Superannuation Guarantee (Administration) Act
1992.
13
Payment of orphans’ pensions
(1) In this section, orphan’s pension
means a pension payable in respect of an eligible child, or eligible children,
under section 11 or 12.
(2) A payment of an orphan’s pension payable
in respect of an eligible child or eligible children shall be made to the child
or children or to such other person or persons as the Attorney‑General
considers appropriate.
(3) Where a payment of orphan’s pension is
payable in respect of 2 or more eligible children, the Attorney‑General
may, having regard to the respective circumstances of the children and to such
other matters as he considers appropriate, apportion the amount of the payment
amongst the children in such manner as he thinks fit, and the portion
applicable to a particular eligible child or to particular eligible children
shall, for the purposes of subsection (2), be deemed to be a payment of
orphan’s pension payable in respect of that child or those children.
(4) A payment of orphan’s pension that, under
subsection (2), is made to a person or persons other than the eligible
child or eligible children in respect of whom it is payable shall be applied
for the support, education or other benefit of that eligible child or those
eligible children.
14
Payment of pensions
Pensions
under this Act:
(a) grow
due from day to day but are payable monthly; and
(b) shall be paid out of the
Consolidated Revenue Fund, which is appropriated accordingly.
15
Special provision relating to children’s pensions (other than orphans’
pensions)
(1) Where a pension is payable under this Act
to the spouse of a Judge or retired Judge in respect of an eligible child or
eligible children:
(a) if the Attorney‑General is
of opinion that the support and education of the child or any of the children
will be best assured by doing so, he may direct that the pension, or such
portion of the pension as he thinks fit, be paid to a specified person in
respect of the child; or
(b) if the Attorney‑General is
satisfied that, by reason of special circumstances, it is desirable to do so in
the interests of the child or of any of the children, he may direct that the
pension, or such portion of the pension as he thinks fit, be expended in a
specified manner for the benefit of the child.
(2) The power of the Attorney‑General
under subsection (1) to direct payment of a pension, or of a portion of a
pension, to a specified person applies only where the child concerned is not
living with the spouse.
(3) Application may be made to the Attorney‑General
for the giving of a direction under subsection (1) in respect of an
eligible child and, upon receipt of such an application, the Attorney‑General
shall:
(a) if he is satisfied that he should
give a direction in respect of the child—give such a direction; or
(b) if he is not so satisfied—refuse
to give such a direction.
(4) A direction under this section shall be
in writing.
15A
Allocation of pension if a deceased Judge or retired Judge is survived by more
than one spouse
(1) If a Judge or retired Judge dies leaving
more than one spouse, the Attorney‑General must allocate any pension
(including pension in respect of any eligible children) payable to a spouse in
respect of the deceased Judge or retired Judge under this Act among the
spouses.
(2) The Attorney‑General must have
regard to the respective needs of the spouses and eligible children (if any)
when making the allocation.
(3) Subject to subsections (4) and (5),
a pension is only payable to each of the spouses in accordance with the
allocation.
(4) The rate of pension payable to a spouse
under the allocation in respect of the spouse or any eligible children must not
exceed the applicable rate (as provided in section 7, 8, 9, 10, 11 or 12)
of the relevant pension in relation to the Judge or retired Judge.
(5) The aggregate of the rates of pension
payable under an allocation must not exceed 100% of the rate of the relevant
pension in relation to the Judge or retired Judge.
(6) In this section:
relevant pension, in relation to a retired
Judge who has died, means the pension that would have been payable to the
retired Judge if he or she had not died.
16
Adjustment by reason of other pensions
(1) Where:
(a) a pension is payable under this
Act by reason of the service of a person as a Judge; and
(b) a pension is or becomes payable
otherwise than under this Act in respect of prior judicial service of that
person;
the amount of the pension that would, but for this
subsection, be payable under this Act in respect of any period shall be reduced
by the amount of the pension in respect of the prior judicial service that is
payable in respect of that period.
(2) This section does not apply where the
Judge or retired Judge:
(a) was a Judge immediately before the
date of commencement of the Judges’ Pensions Act 1968; or
(b) died or retired before that date.
(3) In subsection (1), a reference to a
pension in respect of prior judicial service shall be read as a reference to a
pension or retiring allowance paid or payable, whether by virtue of a law or
otherwise, out of moneys provided in whole or in part by Australia, a State or
a Territory, being a pension or retiring allowance paid or payable by reason of
prior judicial service, or of prior judicial service and any other service.
17
Pension not payable on removal of Judge
Unless the Governor‑General
otherwise directs, a pension under this Act is not payable by reason of the
service of a Judge who has been removed under section 72 of the
Constitution or under any similar provision in an Act.
17A
Application for review
Applications may be made to the
Administrative Appeals Tribunal for review of:
(a) a refusal of the Attorney‑General,
on application under subsection (2AA) of section 6, to certify, under
subsection (2) of that section, that the retirement of a Judge was due to
permanent disability or infirmity;
(aa) a decision of the Attorney‑General
under paragraph 4AA(b);
(aaa) a decision of the Attorney‑General
under paragraph 4AB(2) (b);
(aab) a decision of the Attorney‑General
under subsection 4AB(5);
(aac) a decision of the Attorney‑General
under paragraph 4AC(3) (d);
(ab) a refusal by the Attorney‑General
to give a direction under subsection 8A(2) or 8A(3);
(b) a decision of the Attorney‑General
under section 13;
(c) a direction of the Attorney‑General
under subsection (1) of section 15;
(d) a refusal of the Attorney‑General,
on application under subsection (3) of section 15, to give a
direction under subsection (1) of that section; or
(e) a decision of the Attorney‑General
under subsection 15A(1).
18
Application of Act to and in respect of certain former Judges
(1) This Act applies to and in respect of
Judges, other than Papua New Guinea Judges, who retired or died before the date
of commencement of the Parliamentary and Judicial Retiring Allowances Act
1973 (including Judges, other than Papua New Guinea Judges, who retired or
died before the date of commencement of the Judges’ Pensions Act 1968)
in like manner as it applies to and in respect of Judges who retire or die on
or after the first‑mentioned date.
(2) This
Act applies to and in respect of Papua New Guinea Judges who retired or died at
any time before the date of commencement of this subsection in like manner as
it applies to and in respect of Papua New Guinea Judges who retire or die on or
after that date.
19
Surchargeable contributions
(1) For the purposes of the Superannuation
Contributions Tax (Assessment and Collection) Act 1997, the surchargeable
contributions for a financial year of a Judge is the amount worked out
by using the formula:
where:
annual salary means the amount that is the
Judge’s salary for the financial year.
notional surchargeable contributions factor
means the notional surchargeable contributions factor applying to the Judge for
that financial year under the regulations.
(2) The regulations may prescribe the
notional surchargeable contributions factors that are to apply to a Judge when
working out, for the purposes of the Superannuation Contributions Tax
(Assessment and Collection) Act 1997, the Judge’s surchargeable
contributions.
(2A) For the purposes of the Superannuation
Contributions Tax (Assessment and Collection) Act 1997, there are no surchargeable
contributions for a Judge for a financial year that ends after 1 July 2005.
(3) Subsection (1) has effect despite
any provision of the Superannuation Contributions Tax (Assessment and
Collection) Act 1997.
20
Trustee of Scheme for the purposes of the Superannuation Contributions Tax
(Assessment and Collection) Act 1997
(1) For the
purposes of the definition of trustee in section 43 of the Superannuation
Contributions Tax (Assessment and Collection) Act 1997, the Secretary to
the Department is taken to be the person who manages the Scheme.
Note: The definitions of public sector
superannuation scheme, superannuation fund and trustee
in section 43 of the Superannuation Contributions Tax (Assessment and
Collection) Act 1997 are relevant to this section.
(2) The Secretary to the Department, in the
capacity (because of subsection (1)) of trustee of the Scheme for the
purposes of the Superannuation Contributions Tax (Assessment and Collection)
Act 1997, may delegate any or all of the functions and powers that, as
trustee of the Scheme, he or she has under that Act as follows:
(a) in so far as those functions and
powers are to be exercised in relation to presidential members of the
Australian Industrial Relations Commission—to the Industrial Registrar;
(b) in so far as those functions and
powers are to be exercised in relation to the presidential members of the
Administrative Appeals Tribunal—to the Registrar of the Tribunal, any officer
of the Tribunal or any member of the staff of the Tribunal;
(c) in any other case—to any person
holding, or performing the duties of, a Senior Executive Service office in the
Department.
(3) Section 4 of the Superannuation
Contributions Tax (Application to the Commonwealth—Reduction of
Benefits) Act 1997 does not apply to the Secretary to the Department acting
in the capacity of trustee of the Scheme for the purposes of the Superannuation
Contributions Tax (Assessment and Collection) Act 1997.
(4) If an amount becomes payable under
subsection 16(6) or (6A) of the Superannuation Contributions Tax (Assessment
and Collection) Act 1997 by the Secretary to the Department in the capacity
(because of subsection (1) of this section) of trustee of the Scheme for
the purposes of that Act, the amount must be paid out of the Consolidated
Revenue Fund, which is appropriated accordingly.
21
Regulations
(1) The Governor‑General may make
regulations prescribing matters:
(a) required or permitted by this Act
to be prescribed; or
(b) necessary or convenient to be
prescribed for carrying out or giving effect to this Act.
(2) The regulations may also prescribe accrued
benefit multiples for the purposes of Part VIIIB of the Family Law Act
1975 or regulations made under that Act.