FEDERAL COURT OF AUSTRALIA
Baker v Commonwealth of Australia [2012] FCAFC 121
Citation: Baker v Commonwealth of Australia [2012] FCAFC 121 Parties: BARBARA AVALON BAKER, EVELYN RUTH BENDER, JAMES HAROLD BREWSTER, PHILLIP DONALD BURCHARDT, MICHAEL JOHN FRANCIS BURNETT, GILES ANTHONY COAKES, MICHAEL KEVIN CONNOLLY, ANNE ELIZABETH DEMACK, NORAH HELENE HARTNETT, LOUISE HELEN HENDERSON, KATE HELENA HUGHES, CHARLOTTE MARIE SIMEON KELLY, STUART HAMILTON LINDSAY, TERRENCE JOHN MCGUIRE, DANIEL PATRICK O'DWYER, MAURICE BEAUMONT PHIPPS, GRANT THEO RIETHMULLER, HEATHER MARGARET RILEY, STUART ALDEN ROBERTS, JEFFREY FRANK EDWARD TURNER, JOHN MYER WALTERS, DOMINICA MARY WHELAN, RONALD DAVID CURTAIN and MATTHEW DAVID MYERS v COMMONWEALTH OF AUSTRALIA File number: NSD 1658 of 2011 Judges: KEANE CJ, LANDER AND PERRAM JJ Date of judgment: 31 August 2012 Corrigendum 17 December 2012 Catchwords: CONSTITUTIONAL LAW – Judicial pensions – Federal Magistrates – s 72(iii) of the Constitution – constitutional requirement of judicial independence – apprehension of dependence or partiality by reasonable well-informed lay observer Legislation: Constitution Ch III, ss 71, 72
Acts Interpretation Act 1901 (Cth) s 15A
Federal Magistrates (Consequential Amendments) Act 1999 (Cth) s 3, cl 1 of Sch 18
Federal Magistrates Act 1999 (Cth) ss 2, 3 and 8, cl 5(1), 8(1), 9H of Sch 1
Judges’ Pensions Act 1968 (Cth) ss 4, 6
Judiciary Act 1903 (Cth) s 44(3)Federal Magistrates (Terms and Conditions of Appointment) Determination 2000 (Cth) cl 2(1)
Cases cited: Attorney-General (NSW) v Brewery Employees Union (NSW) (1908) 6 CLR 469 cited
Austin v Commonwealth (2003) 215 CLR 185 considered
Colquhoun v Brooks (1888) 21 QBD 52 cited
Ebner v Official Trustee (2000) 205 CLR 337 cited
Forge v ASIC (2006) 228 CLR 45 applied
Houssein v Under-Secretary of Industrial Relations and Technology (NSW) (1982) 148 CLR 88 cited
In re Judiciary and Navigation Acts (1921) 29 CLR 257 cited
Kable v Director of Public Prosecutions (NSW) (1995-1996) 189 CLR 51 applied
McGinty v Western Australia (1996) 186 CLR 140 discussed
North Australian Aboriginal Legal Aid Service Inc v Bradley (2004) 218 CLR 146 cited
Pidoto v Victoria (1943) 68 CLR 87 cited
Provincial Court Judges’ Association of New Brunswick v The Queen (2005) 2 SCR 286 cited
Provincial Court Judges’ Case (1997) 3 SCR 3 cited
Re Patterson; ex parte Taylor (2001) 207 CLR 391 cited
Re Remuneration of Judges of the Provincial Court of Prince Edward Island (1998) 1 SCR 3 cited
Re Wakim; Ex parte McNally (1999) 198 CLR 511 cited
TheQueen v Kirby and Others; Ex parte Boilermakers’ Society of Australia (1955-1956) 94 CLR 254 citedTheophanous v The Commonwealth (2006) 225 CLR 101 cited
Date of hearing: 9 August 2012 Place: Sydney Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 98 Counsel for the Applicants: BW Walker SC, AW Street SC, RA Yezerski Solicitor for the Applicants: Yeldham Price O’Brien Lusk Counsel for the Respondent: NJ Williams SC, NL Sharp Solicitor for the Respondent: Australian Government…
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- Case
- [2012] FCAFC 121
- Decision Date
CaseChat Overview and Summary
The court considered the constitutional validity of the legislative amendments, focusing on whether they infringed upon the independence of federal magistrates as required by section 72(iii) of the Constitution. The court examined the nature and extent of the pension entitlements under the original and amended provisions, assessing whether the changes created an apprehension of dependence or partiality. The court held that the amendments did not infringe upon the constitutional requirement of judicial independence, as the reduced pension entitlements did not create an apprehension of dependence or partiality by a reasonable well-informed lay observer. The court found that the changes were consistent with the broader legislative framework governing judicial pensions and did not undermine the fundamental principle of judicial independence.
In light of the findings, the court answered the referred questions, ruling that the applicants were not entitled to the relief sought. The court ordered that the applicants pay the Commonwealth's costs as taxed or agreed, both in respect of the Special Case and the proceedings before the referral to the Full Court. The orders were made under Rule 39.32 of the Federal Court Rules 2011, finalising the legal dispute and setting the financial consequences for the parties involved.
Orders
Orders of the court
1. The questions referred to the Full Court by Order 5 of the orders of Buchanan J dated 1 June 2012 be answered as follows:
Question One: Are the applicants entitled to the relief sought in the amended application and the second further amended statement of claim?
Answer: No.
Question Two: What order as to costs should be made with respect to the Special Case?
Answer: The applicants should pay the Commonwealth’s costs as taxed or agreed.
Question Three: What order as to costs should be made with respect to the proceedings before referral of the Special Case to a Full Court?
Answer: The applicants should pay the Commonwealth’s costs as taxed or agreed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Established by: KEANE CJ
Section 72 makes provision for the appointment, tenure and remuneration of the justices of courts created by parliament as follows: 72 Judges' appointment, tenure, and remuneration 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. The appointment of a Justice of the High Court shall be for a term expiring upon his attaining the age of seventy years, and a person shall not be appointed as a Justice of the High Court if he has attained that age. The appointment of a Justice of a court created by the Parliament shall be for a term expiring upon his attaining the age that is, at the time of his appointment, the maximum age for Justices of that court and a person shall not be appointed as a Justice of such a court if he has attained the age that is for the time being the maximum age for Justices of that court. Subject to this section, the maximum age for Justices of any court created by the Parliament is seventy years. The Parliament may make a law fixing an age that is less than seventy years as the maximum age for Justices of a court created by the Parliament and may at any time repeal or amend such a law, but any such repeal or amendment does not affect the term of office of a Justice under an appointment made before the repeal or amendment. A Justice of the High Court or of a court created by the Parliament may resign his office by writing under his hand delivered to the Governor‑General. Nothing in the provisions added to this section by the Constitution Alteration (Retirement of Judges) 1977 affects the continuance of a person in office as a Justice of a court under an appointment made before the commencement of those provisions. A reference in this section to the appointment of a Justice of the High Court or of a court created by the Parliament shall be read as including a reference to the appointment of a person who holds office as a Justice of the High Court or of a court created by the Parliament to another office of Justice of the same court having a different status or designation. THE PENSIONS ACT Prior to the enactment of the Amendments Act, the Pensions Act had provided that every justice of a federal court was, by virtue of that office, entitled to receive a post-retirement, life-long, salary-based, pension, subject only to minimum eligibility requirements related to the justice’s age of retirement and length of service. Section 6 of the Pensions Act provides that judges shall receive pensions. It is relevantly in the following terms:6 Pensions of Judges (1) Where: (a) a Judge … who has attained the age of 60 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).