A further letter from the ABA regarding changes to judicial remuneration
12 July 2024
Dear Colleagues,
You will recall my email of 10 May 2024, sharing a letter I sent to the Attorney-General, Treasurer and Assistant Treasurer regarding proposed changes to judicial remuneration (a copy may be read here).
Unfortunately I have received no response.
Accordingly, I have sent the following letter to the Attorney-General, Treasurer and Assistant Treasurer.
Kind regards,
Peter Dunning KC
President, Australian Bar Association
12 July 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 refer to my letter to each of you of 10 May 2024. In the now more than two months that have elapsed, I have not received a reply from any of you.
I wish to reiterate the deep concern of the Bar nationally in relation to the capricious and unfair manner in which this proposed additional tax on the remuneration of Commonwealth and Territory judges would operate, if enacted in the terms that have been outlined.
In particular, I wish to emphasise the following.
Lack of consultation with the ABA as an essential stakeholder
As I stated in my earlier letter, the Australian Bar overwhelmingly supplies judges for Commonwealth, State and Territory courts. To impose an additional tax on Commonwealth and Territory judges without consultation with the peak body whose members will continue to go on to be judges into the future demonstrates, respectfully, a fundamental failure to consult.
The proposed legislation is corrosive of judicial independence and the separation of powers
It is not just an article of faith in Australia and democracies like it where the rule of law prevails, but also a constitutional imperative by section 72(iii) of the Constitution, that the remuneration of judges cannot be diminished after appointment. It is one of the institutional safeguards of our democratic system and a meaningful expression of the way that the citizen appears in court against the state on an equal footing.
The judicial pension is undoubtedly an important component of overall judicial remuneration: Austin v The Commonwealth (2003) 215 CLR 185. Consequently, such an additional tax on the remuneration of Commonwealth and Territory judges is apt to produce a constitutional challenge that would be necessarily invidious.
In my opinion, the proposed legislation would have the most corrosive institutional impact on a court that I have witnessed in my 32 years as a barrister, far beyond any controversy about the selection of individual judges.
Disproportionate taxation of female judges, as females
The Hon. Susan Crennan AC KC has written, in a way which I do not understand to be controversial, that the practical consequence of the proposed tax would be to disproportionately tax female judges (past and present) over male judges, because in the present circumstances there are a disproportionately larger number of females over males who have had very long judicial careers. That is, frankly, disrespectful of a cohort of women who were willing to make the sacrifice to leave early other valuable careers in the law to become judges, and within the space of a generation, to take female judicial officers from a rare exception to an unremarkable incident of orthodox judicial appointments.
Beyond that practical consequence, given the longer life expectancy of women, literally, the tax is prone to apply to female judges to a greater extent than male judges, because they are female.
No Parliament in 2024, respectfully, should countenance such an outcome.
An affront to the commitment to public service of judges of Commonwealth and Territory courts
Overwhelmingly, judges make large personal and financial sacrifices to undertake the demanding responsibility of fairly and justly sorting out disputes between those who cannot sort the disputes out for themselves. It is an affront to that commitment to public service to then impose a special tax, on some judges, that operates only because they are Commonwealth and Territory judges.
Disruption of our federated judiciary
The remuneration of a Justice in the Federal Court of Australia is, practically, the benchmark for the remuneration for judges of superior courts of record in the Commonwealth, States and Territories, and in inferior courts in the States. That is an important component to the seamless federation Australia has enjoyed. The law, if passed, must necessarily disrupt that on a practical level.
I again request prompt and proper consultation with my members so the above concerns, and others, can be fully canvassed. This matter is of such importance to my members that I intend to provide a copy of this letter to them.
I look forward to hearing from you.
Yours sincerely,
Peter Dunning KC
President