A letter from the ABA regarding changes to judicial remuneration

Dear Colleagues, 

You will have seen press regarding proposed legislation that would materially adversely affect the entitlements of current and former judges of superior courts of record in the Commonwealth and the Territories. 

That judicial entitlements of judges and former judges cannot be compromised after appointment is a cornerstone of securing an independent judiciary. 

These developments are in every sense concerning. 

Consequently, I have written, in terms I trust are self-explanatory, to the Attorney-General, the Treasurer and Assistant Treasurer in the form of the below letter. 

As a profession, we owe it to the judges to come to their aid when attempts are made to compromise their independence. 

Inevitably, I will be writing to you further in relation to this matter.  

Kind regards,

Peter Dunning KC

President, Australian Bar Association

 

 

10 May 2024

 

The Hon. Mark Dreyfus KC 

MP Commonwealth Attorney-General 

House of Representatives 

Parliament House 

CANBERRA ACT 2600

 

The Hon. Dr Jim Chalmers MP

Treasurer

House of Representatives

Parliament House

CANBERRA ACT 2600

 

The Hon. Stephen Jones MP

Assistant Treasurer

House of Representatives

Parliament House

CANBERRA ACT 2600

 

By email

 

Dear Attorney-General, Treasurer and Assistant Treasurer

I am writing in relation to the recent notification of the close of public consultations and imminent reporting regarding the Exposure Drafts of the Treasury Laws Amendment (Better Targeted Superannuation Concessions) Bill 2023 and the Treasury Laws Amendment (Better Targeted Superannuation Concessions) Imposition Bill 2023 (the Draft Bills), as they affect Commonwealth and Territory superior court judges.

I note that among other obvious stakeholders, the Australian Bar Association (ABA) has not been directly engaged with, nor even directly invited to make submissions in relation to this process. That is notwithstanding that Australian barristers overwhelmingly make up the professionals who fill judicial positions throughout Australia.

The Draft Bills raise concerning institutional issues. Prominent and distinguished Australians have spoken publicly in that regard recently. The Draft Bills, and their adverse impact if enacted, are to be measured against the following matters of national significance.

Judges — Commonwealth, State and Territory — stand between the State and the citizen and also quieten controversies between citizens. Judicial officers embody the third and indispensable arm of government in a civil society.

The attributes of independence, integrity, skill and experience are required to fulfil that difficult task. The Australian judiciary overwhelmingly has those attributes. The acceptance of judicial office nearly always involves material financial sacrifice by the judge from the career the judge leaves behind.

For a very long time, and for obvious reasons, those qualities, most particularly independence, have been secured by ensuring that the remuneration of judges, and necessarily former judges, cannot be imperilled by the State.

Under Australia’s constitutional arrangements, that is not just an article of faith, but an article of our ultimate governing document: Australian Constitution, s 72(iii). The prospect that the Draft Bills, if enacted, provoke a constitutional challenge would produce invidious circumstances at many levels.

Additionally, the remuneration of Commonwealth judges is, literally, the benchmark for the remuneration of current and former State and Territory judges: e.g. Judicial Remuneration Act (Qld) s.5 and Judges (Pensions and Long Leave) Act (Qld) 1957.

That benchmarking serves other fundamental outcomes of ensuring comity between courts throughout Australia and a federal legal system that is seamless by world standards. That benchmarking would be significantly disrupted by what is being proposed.

In the above circumstances, the absence of any formal and direct consultation with the ABA, the State and Territory Bar Associations and other stakeholders relevant to the above institutional matters is of real concern.

Also concerning is the matter appears to be being dealt with by Treasury, when the topic of remuneration of Commonwealth judges, and its protection, is constitutionally entrenched in Chapter 3 of the Australian Constitution and ought to be led in those circumstances by the Attorney-General’s Department.

In the circumstances, I welcome the opportunity to discuss in the first instance how to ensure that a proper consultation process takes place.

The significance of this matter warrants me communicating these concerns, and my expression of them to you, to my members directly.

I look forward to hearing from you.

Yours sincerely,

Peter Dunning KC 

President, Australian Bar Association