The Retirement Benefits Fund Board v Wood

[2016] TASFC 9

COURT: SUPREME COURT OF TASMANIA (FULL COURT)

CITATION: The Retirement Benefits Fund Board v Wood [2016] TASFC 9

PARTIES:  THE RETIREMENT BENEFITS FUND BOARD
  v
  HELEN MARIE WOOD

FILE NO/S: 934/2016
JUDGMENT

APPEALED FROM: Wood v The Retirement Benefits Fund Board [2016] TASSC 15

DELIVERED ON:  19 October 2016
DELIVERED AT:  Hobart
HEARING DATE/S:  26 July 2016
JUDGMENT OF:  Byrne, Emmett and Fraser AJJ

CATCHWORDS:

Superannuation – Public service funds – Other matters – Where the respondent was a magistrate and resigned to take up an appointment the next day as a Supreme Court judge – Where as a magistrate the respondent was a member of the Contributory Scheme of the Retirement Benefits Fund (the Contributory Scheme) – Where the primary judge held that the respondent remained a member of the Contributory Scheme despite resignation – Where the appellant submits the primary judge erred in failing to hold that upon the respondent’s resignation she ceased to be a contributor within the meaning of the Retirement Benefit Fund Regulations 2005 – Where the respondent submits the primary judge’s decision should be upheld on the basis of the presumption in favour of vested interests and the proposition of continuity of employment - The effect of resignation on membership of the Contributory Scheme

Austin v The Commonwealth (2003) 215 CLR 185, referred to; Greville v Williams (1906) 4 CLR 694, referred to; Prowse v McIntyre (1963) 111 CLR 264, referred to; R&R Fazzolari Pty Limited v Parramatta City Council (2009) 237 CLR 603, referred to; Re Australian Education Union; Ex parte Victoria (1995) 184 CLR 188, referred to; Reseck v Federal Commission of Taxation (1975) 133 CLR 45, referred to.

REPRESENTATION:

Counsel:
             Appellant:  L Sealy SC
             Respondent:  S B McElwaine SC
Solicitors:
             Appellant:  Dobson Mitchell Allport
             Respondent:  Shaun McElwaine + Associates

Judgment Number: [2016] TASFC 9
Number of paragraphs: 97

Serial No 9/2016
File No 934 of 2016

THE RETIREMENT BENEFITS FUND BOARD v HELEN MARIE WOOD

REASONS FOR JUDGMENT FULL COURT

BYRNE AJ
EMMETT AJ
FRASER AJ
19 OCTOBER 2016

Orders of the Court
1Appeal allowed.
2Declarations and orders made on 22 March 2016 set aside.
3Proceedings dismissed.

Serial No 9/2016
File No 934 of 2016

THE RETIREMENT BENEFITS FUND BOARD v HELEN MARIE WOOD

REASONS FOR JUDGMENT FULL COURT
BYRNE AJ

19 OCTOBER 2016

I have had the advantage of reading the draft reasons for judgment prepared by the other members of the Court. I gratefully adopt their terminology, and what they have written about the background to this appeal and the complex legislation that gives rise to it. I agree, too, with the conclusion that they have reached. Nevertheless, having regard to the careful judgment of the primary judge and to the comprehensive submissions of counsel, I venture to state my own reasons for reaching that conclusion.
The starting point must be the 1887 Supreme Court Act s 8(3):
“Where a person is appointed as a judge on or after the transfer day [25 April 2000] –
(a) he or she is not eligible to become a member of the contributory scheme provided by the regulations under the Retirement Benefits Act 1993; and
(b) subject to subsection (4), he or she is to be a member of the accumulation scheme; and …”
This provision shows that a person appointed as a judge after the transfer day must, subject to an irrelevant qualification, become a member of the Accumulation Scheme. It says nothing of the retirement benefits position of such an appointee who was previously a contributor to the Contributory Scheme. This appeal is concerned with that retirement benefits position in the circumstances of the Respondent’s resignation from the position of magistrate on 8 November 2009 and her appointment as a judge of the Supreme Court on the following day.
The fundamental issue, identified by the primary judge and in the majority judgment, is that raised in ground 3 of the notice of appeal – whether, upon her resignation as a magistrate becoming effective, at midnight on 8 November 2009, the Respondent ceased to be a contributor to the Contributory Scheme. If she did not, then the ineligibility referred to in s 8(3)(a) does not arise; she does not then seek to become a member of the Contributory Scheme. This raises a question as to the construction of the legislative and regulatory regime of the Accumulation Scheme. The Respondent’s contentions relied on two broad propositions. The first was that the legislation must be construed having regard to the presumption in favour of vested interests. The second was that legislation of this kind should favour continuity of employment in circumstances where an employee simply moved from one office to another within the same organisation.

The vested rights argument

The primary judge placed some weight upon the presumption that a statute should be construed in light of the presumption against interference with vested rights. It was said that, as at 8 November 2009, the Respondent had acquired valuable rights and had an expectation of future valuable entitlements by reason of her status as a contributor to the Contributory Scheme. She contended that those rights and her expectation of the receipt of future rights constituted property that should not be disturbed without a clear indication in the legislation. This presumption means that, where words in a statute are capable of more than one construction, the construction that least interferes with private property rights will be preferred (R & R Fazzolari Pty Limited v Parramatta City Council (2009) 237 CLR 603 at [40]-[43]).
The Respondent contended that, in the case of legislation concerning judicial entitlements, the presumption has greater force, since an erosion of judicial entitlements would strike at judicial independence. Counsel relied also upon observations made in the Minister’s speech on the second reading of the Bills for the various enactments. These were to the effect that no existing rights were to be affected.
I observe at the outset that this presumption is an aid to construction of an ambiguous or otherwise obscure statute. Where the text is clear the presumption cannot operate to require a different interpretation.
Counsel for the Respondent contended that the position adopted by the Board to the claims of his client, if accepted, showed that her vested or existing rights to a share in the Retirement Benefits Fund were taken away. He argued that this position should not be accepted unless the text of the legislation demanded it. For the Board, however, it was submitted that none of the entitlements of the Respondent as a contributor to the Contributory Scheme could be described as such a right until one or other of the events giving rise to an entitlement occurred. In the meantime, it was said, the right of the contributor is no more than the right to have the scheme properly administered. Kennon v Spry (2008) 238 CLR 366, was relied on in support of this proposition, the matter concerned a claim by a wife in Family Court proceedings that her expectancy as an object of a discretionary trust was property and that it entitled the court to include the assets of the trust in the division of matrimonial property. In the course of his judgment, French CJ said this, at [75]:
There has been considerable judicial discussion about the nature of a beneficiary's right to due administration in the case of the residuary legatee of an unadministered deceased estate and members of superannuation funds whose benefits have not vested. The residuary legatee has an equitable right, "a chose in action, capable of being invoked for any purpose connected with the proper administration of [the] estate". Such a right has been treated as property for the purposes of the Bankruptcy Act 1966 (Cth). In the case of a residuary legatee the right to due administration is connected to a real expectancy of an interest in the property. The same is true for the members of a superannuation fund although vesting of a benefit may be many years in the future. However, the right to due administration taken by itself in relation to a superannuation fund was described by the Full Court of the Family Court in 1986, in a brief consideration of the question, as "an empty present right of no relevance". (References omitted).
It is well established, however, that this right is a benefit held by the contributor, even before any of the events occurred (See BHLSPF Pty Ltd v Brashs Pty Ltd (2001) 8 VR 602 at 611-612 [36]-[37], [39]). Indeed, the right of a member of a superannuation scheme has been authoritatively described as that of a beneficiary of a trust; although the precise form and quantum of his or her beneficial interest is contingent on particular events, he or she does have a present beneficial interest: Finch v Telstra Super Pty Ltd (2010) 242 CLR 254 at 270 [30]. I conclude that, prior to her resignation as magistrate, the right of the Respondent to a share in the Retirement Benefits Fund was not a present vested right to any part of the fund; it was, nevertheless, an equitable right to have the fund properly administered, the value of which might be problematic. She also had the rights conferred on a contributory under the trust deed.
Accordingly, at a moment before midnight on 8 November 2009 her right as a contributor to the Contributory scheme included the right to terminate her participation in the Contributory scheme under reg 34(3) and, if she exercised that right, she had the right to receive in the future a preserved benefit under reg 52. To the extent that the Respondent might be seen as being worse off as a consequence of her resignation from the position of magistrate and her appointment as a judge, that consequence arose because her resignation became effective, an event that occurred by reason of her own decision to resign. It was a consequence, not of the legislation or regulation or any change to them, but as a consequence of her exercise of rights conferred upon her by the legislation or regulation. The Respondent could have remained as a magistrate. Had she done so, she would have continued to be a contributor to the Contributory Scheme and to enjoy the rights and benefits to which she had or might become entitled to under that scheme. These rights and benefits were not affected in any way by the legislation or any regulation.
Next, it was said that the Respondent resigned from the magistracy in order to take up the position of judge. I am not sure what was said to be the significance of this. The legislation or regulations are not concerned with the reason for the termination of a contributor’s employment. If the Respondent had resigned as a magistrate with a view to retiring from the law altogether, she would have been entitled to the same benefits.

The continuity argument

Counsel for the Respondent emphasised that his client was an employee before her resignation from the magistracy became effective, and that, immediately afterwards, she was an employee upon her appointment as a judge. He urged us to accept the conclusion of the primary judge that, since there was no interval of time between the two events we should treat her employment status as being unaffected by them – that her status as employee was not interrupted. This submission appears to accept that the Respondent’s resignation did have the effect of terminating her employment, but that the interval of time between that event and her becoming an employee upon her appointment as judge was so miniscule that it might be ignored
In support of this contention, reference was made to the decision in Reseck v Federal Commissioner of Taxation (1975) 133 CLR 45. This was a case where the question was whether the taxpayer had received “any allowance, gratuity or compensation where that amount is paid in a lump sum in consequence of retirement from, or the termination of, any office or employment”. Reliance was placed, on behalf of the Respondent, upon the following passage from the judgment of Gibbs J (at [6]): “In most cases in which a workman ceased his employment on a Friday and commenced employment again with the same employer on the following Monday it would be impossible to say that his employment had ever been terminated.” This was said as a comment upon the finding of the Board of Review, a finding of fact that his Honour was unable to disturb. The judgment, therefore, proceeded on the basis that the taxpayer’s employment had in fact been terminated. With respect, this passage is of no assistance in the very different circumstances of this case.
The legislation and regulations contain no warrant for the implication of such a qualification to their terms. It is sufficient, for reg 34(3)(a) to apply, that the employment has ceased. See too 2005 Regulations reg 6(3).
It was put, perhaps in the alternative, that the words, “ceases to be an employee” are concerned with finality, rather than a cessation in order to take up another position which satisfies the definition of “employee”.
There is no basis to imply in the words of reg 34(3)(a) a requirement that the cessation of employment should be final. A person may cease to be an employee or may not; what is required by the regulation is only that the employment ceases. That conclusion is supported by the presence of s 4(7) of the Public Sector Reform Act 1999 and reg 119 of the 2005 Regulations (both introduced in 2005 by the Public Sector Superannuation (Miscellaneous Amendments) Act 2005 (Tas), Schedule 1). Thus, the legislative scheme contemplates the possibility that a “break in service” may not necessarily be fatal to continuity of the status as contributor to the Contributory Scheme. It might have been open to the Respondent to request the Board to determine that any break in service that occurred by reason of her resignation and appointment was not to affect the continuation of her service for the purposes of the 2005 Regulations. There was no evidence that she made any such request.
In this context, too, the primary judge likened the resignation and appointment of the Respondent on 8 and 9 November to the transfer of a person from one position within an organisation to another, or to the commissioning of a sergeant as a lieutenant. I do not know whether a sergeant in such an event would be required to resign from the army in order to take up the commission. The significant feature of this case is that the Respondent did in fact tender her resignation and it was accepted. As a matter of law, this is not a promotion within the judicial arm of government. Ground 4 is made out.

The portability argument

I mention at this point what was described in argument as “the portability of retirement benefits” under the 1999 changes. For common law employees, the legislation and regulations accept this principle. In general, where such an employee was a contributor to the Contributory Scheme before the changes, he or she continues as a contributor to that scheme. Persons employed after that date are required to become members of the Accumulation Scheme.
The position with respect to those appointed to specified offices is more complicated. The Governor Act was amended by Part 3 of the PJSLO Reform Act to the effect that where a person is first appointed as the Governor on or after 25 April 2000, he or she is not eligible to become a member of the Contributory Scheme. Rather, he or she is to be a member of the Accumulation Scheme and references to an employee in the Public Sector Reform Act are to be read as including references to the Governor (See s 3D(3)). In this respect it follows the amendments to the judges’ entitlements to which I have referred in paragraph 2 above. Similar amendments were made by this Act to the DPP Act (see s 8A(3)), to the SG Act (see s 13(3)), and to the Supreme Court Act 1959 dealing with Masters (see s 4AA(3)).
The changes made by the PJSLO Reform Act to the retirement benefits for the Solicitor-General and the DPP, however, contained a further provision dealing with the portability of their prior contributor status in the Contributory Scheme. Where a person who is appointed as DPP was, immediately before his or her appointment, an employee within the meaning of the State Services Act 1984 (Tas) and was a contributor to the Contributory Scheme, that person remained a member of the Contributory Scheme unless he or she elects to join the Accumulation Scheme (see s 13(2)). Part 10 of the PJSLO Reform Act made a similar amendment to the SG Act (see s 12(3)). These portability provisions were not included in those parts of the PJSLO Reform Act, which dealt with the retirement benefits for the Governor, judges and Masters.
This shows that the legislature was in 1999 well aware of the possibility that a person appointed to one of those offices after the commencement of the Accumulation Scheme might have been a member of the Contributory Scheme and, further, in the same statute, it chose not to provide portability for the Governor, judges and Masters who had been contributors to the Contributory Scheme before appointment.

Ground 3 – Cessation of employment

There can be no doubt that the Respondent, as a magistrate, was an employee and contributor to the Contributory Scheme from 1994 until midnight on 8 November 2009. At that moment, she ceased to be employed as a magistrate and, immediately thereafter she became a judge of the Supreme Court. Her case, that she did not then cease to be an employee within the meaning of reg 34(3), depends upon two propositions: that the holder of the office of judge is an employee; and, that her transition from employee magistrate to employee judge was such that there was no interruption in her status as employee as that term is used in reg 34.
Regulation 34(1) of the 2005 Regulations provides that the contributions of a permanent employee are to commence on the day on which he or she is appointed to the office or position by virtue of which he or she is an employee. It is at that time that the person becomes a contributor to the Contributory Scheme. In the present case the Respondent’s contributions commenced when she was appointed as magistrate, an office or position, which, by s 10(3) of the Magistrates Act, rendered her an employee for the purposes of the 1993 Act. This, then, is the office by virtue of which she was an employee, at least for the purposes of this regulation.
Sub-regulation 34(3) lists five circumstances in which contributions cease to be payable. These are the circumstances in which the person ceases to be a contributor. Attention on this appeal was directed to the first circumstance: when the contributor ceases to be an employee. I do not know the terms of the Respondent’s resignation as magistrate. It may be assumed that it was expressed in terms that she was resigning from the office of magistrate for the purpose of accepting appointment as a judge. The acceptance of this resignation meant that the Respondent no longer held the office by virtue of which she was deemed to be an employee by reason of s 10(3) of the Magistrates Act. In short, I conclude that upon her retirement she ceased to be an employee, as that word is used in reg 34.
This conclusion renders it unnecessary that I enter upon the question to which ground 1 and ground 2 are directed, and to the consequence urged by counsel for the Respondent that, as a judge on 9 November and thereafter, the Respondent was and is an employee within the meaning of that term in the legislation or the regulations.

Other matters

As I have mentioned, the DPP Act and the SG Act each contains a portability provision. If the Respondent had been appointed in November 2009, not to the office of judge, but to that of DPP or Solicitor-General, she would have kept her status as contributor to the Contributory Scheme, not because she never ceased to be an employee, but by reason of the express portability provision in the statute under which she held her new office. Put another way, if the contentions advanced on her behalf in this appeal were correct, the express portability provision would be unnecessary to preserve her status as contributor following her resignation from the magistracy and appointment as DPP or Solicitor-General.

Moreover, I cannot ignore the various express provisions that state that participation in the Contributory Scheme is not available to a person appointed after 1999. I refer to the 1994 Regulations reg 3A(1)(c) (as amended), the 2005 Regulations reg 27, the 1887 Supreme Court Act s 8(1), and the Public Sector Reform Act ss. 4(1) and 6(1). These Acts and regulations include no portability provision for judicial appointees.
Finally, I return to my starting point. I note the firm direction contained in the 1887 Supreme Court Act s 8(3)(b) that a judge newly appointed after the transfer day, 25 April 2000, is to be a member of the Accumulation Scheme. I do not think that the statute contemplated that the appointee might be a participant in both schemes.

Conclusion

I, therefore, agree with the conclusion of the other members of the Court. The Respondent ceased to be a contributor and member of the Contributory Scheme upon resigning as a magistrate. The primary judge erred in concluding that her resignation as a magistrate did not have that effect. She was not, then, entitled to become a contributor to the Contributory Scheme. Ground 3 of the Board’s notice of appeal should be upheld.

File No 934 of 2016

THE RETIREMENT BENEFITS FUND BOARD v HELEN MARIE WOOD

REASONS FOR JUDGMENT FULL COURT
EMMETT AJ

FRASER AJ
19 OCTOBER 2016

With effect on 9 November 2009, the respondent, the Honourable Justice Helen Wood (the Respondent), was appointed as a judge of the Supreme Court of Tasmania (the Supreme Court) under the Supreme Court Act 1887 (Tas) (the 1887 Supreme Court Act). Immediately prior to that appointment taking effect, the Respondent was a magistrate appointed under the Magistrates Court Act 1987 (Tas) (the Magistrates Act). In that capacity, the Respondent was a contributor of a superannuation scheme known as the Contributory Scheme of the Retirement Benefits Fund (the Contributory Scheme). This appeal is concerned with the entitlement of the Respondent to continue to be a contributor of the Contributory Scheme after her appointment as a judge.
The appellant, the Retirement Benefits Fund Board (the Board), which is the trustee of the Contributory Scheme, contends that the Respondent ceased to be a contributor of the Contributory Scheme when her resignation as a magistrate took effect. The Respondent, on the other hand, contends that she is entitled to remain as a contributor. Before dealing with the issues raised in the appeal, it is necessary to set out in some detail the legislative framework under which the present dispute has arisen.

The Legislative Framework

The Contributory Scheme was established under the Retirement Benefits Fund Act 1970 (Tas) and was continued pursuant to the Retirement Benefits Act 1982 (Tas). Thereafter, the Contributory Scheme was further continued pursuant to the Retirement Benefits Act 1993 (Tas) (the 1993 Act), the objects of which were stated to be to provide a superannuation scheme for persons employed by the State of Tasmania (the State) or authorities of the State, and for the spouses and beneficiaries of those persons in certain cases (see s 5).
From 1994, the Contributory Scheme was regulated by Pt 4 of the Retirement Benefit Fund Regulations 1994 (the 1994 Regulations) and, from 2005, it was regulated by Pt 5 of the Retirement Benefit Fund Regulations 2005 (the 2005 Regulations). Both the 1994 Regulations and the 2005 Regulations were made under the 1993 Act.
Section 10(3) of the Magistrates Act provided that a magistrate was an employee for the purpose of the 1993 Act. Accordingly, when she was appointed as a magistrate with effect on 6 April 1994, the Respondent was entitled to be, and she in fact became, a contributor of the Contributory Scheme.
At the time when the Respondent was appointed as a magistrate, retirement benefits for judges of the Supreme Court were provided for in the Judges Contributory Pensions Act 1968 (Tas) (the Pensions Act). The Pensions Act relevantly provided that a judge, on retirement after 15 years’ service, was entitled to a pension of half judicial salary.
In 1999, following enactment of the Public Sector Superannuation Reform Act 1999 (Tas) (the Public Sector Reform Act) and the Superannuation (Parliament, Judiciary and Statutory Legal Officers) Reform Act 1999 (Tas) (the PJSLO Reform Act), significant changes were made in relation to retirement benefits for magistrates and judges appointed after 15 May 1999 (the Commencement Day). Parts 8 and 9 of the PJSLO Reform Act inserted new objects provisions in both the 1993 Act and the Public Sector Reform Act. In each case, the objects were said to include the provision of a superannuation scheme for a person who, after 1 July 1999, is appointed as a judge or Master of the Supreme Court.
Section 4(1) of the Public Sector Reform Act relevantly provides that the Contributory Scheme does not apply to an “employee” appointed or engaged on or after the Commencement Day. However, under s 4(7) of the Public Sector Reform Act, s 4(1) does not apply to a person if the Board certifies under the Regulations that a break in service did not affect the continuity of that person’s service. The significance of that will become apparent below.
Section 6 of the Public Sector Reform Act relevantly provides that an “employee” appointed or engaged on or after the 25 April 2000 (the Transfer Day) is a member of the Tasmanian Accumulation Scheme (the Accumulation Scheme). Section 7 of the Public Sector Reform Act provided for the establishment of the Accumulation Scheme. The Board is the trustee of the Accumulation Scheme.
The term “employee” was defined in the 1994 Regulations, relevantly, as a person “appointed or employed in any position or capacity … in any industry or undertaking carried on by or on behalf of the State”, other than a person to whom reg 4 relates. A judge, the Solicitor-General and the Director of Public Prosecutions (the DPP) were expressly excluded from the application of the 1994 Regulations. Separate legislation provided for retirement benefits for those office holders, as will be referred to below.
The PJSLO Reform Act also amended the Pensions Act to provide that the Pensions Act does not apply to a judge appointed after 1 July 1999. The PJSLO Reform Act also amended s 8 of the 1887 Supreme Court Act to provide, relevantly, that, where a person is appointed as a judge on or after the Transfer Day, that person is not eligible “to become” a member of the Contributory Scheme and that person is to be a member of the Accumulation Scheme. Under s 8(3)(c) of the 1887 Supreme Court Act, references to an “employee” in the Public Sector Reform Act are to be read as including references to a judge.
The PJSLO Reform Act also amended a number of other statutes, including the following:
·Director of Public Prosecutions Act 1973 (the DPP Act);
·Governor of Tasmania Act 1982 (the Governor Act);
·Solicitor-General Act 1983 (the SG Act);
·Supreme Court Act 1959 (the 1959 Supreme Court Act);
·The Pensions Act.
Significantly, the amendments made to the SG Act and the DPP Act adopted a scheme that differed from that made by the amendments to the 1887 Supreme Court Act and the Pensions Act. Thus, the DPP Act was amended to provide, in s 8A, that, where a person is appointed as the DPP on or after the Transfer Day, he or she is not eligible “to become” a member of the Contributory Scheme. Rather, he or she is to be a member of the Accumulation Scheme and references to an employee in the Public Sector Reform Act are to be read as including references to the DPP. However, the DPP Act was also amended to provide that, where a person who is appointed as DPP was, immediately before his or her appointment, an employee within the meaning of the State Services Act 1984 (Tas) and was a contributor of the Contributory Scheme, that person remains a member of the Contributory Scheme unless he or she elects to be subject to s 8A. A similar scheme was introduced into the SG Act.
Perhaps more pointedly, the 1959 Supreme Court Act, which deals with the office of “Master and Keeper of the Records” mentioned in the Charter of Justice, was amended in 2008 to substitute a new s 5F. By that time, the Master was known as Associate Judge. Section 5F(1) provided that the Associate Judge is not, as regards that particular office, subject to the provisions of the State Service Act 2000 (Tas). However, if a person appointed as Associate Judge was immediately before that appointment a “State Service officer” or “State Service employee”, within the meaning of the State Services Act, the person was to retain all of his or her existing and accruing rights and, for the purpose of determining those rights, the person’s service as Associate Judge was to be taken into account as if it was service as a State Service officer or a State Service employee.
The amendments just described clearly contemplate portability of the status of contributor of the Contributory Scheme in the case of the office holders referred to. The amended scheme for those office holders is to be contrasted with the scheme applying to judges of the Supreme Court following the amendment of the Pensions Act and the 1887 Supreme Court Act. That is to say, while the amendments dealing with the DPP, the Solicitor-General and the Associate Judge expressly contemplated portability or transfer of the status of contributor of the Contributory Scheme in certain circumstances, the amendments relating to the Pensions Act and the 1887 Supreme Court Act did not. Similarly, the amendments made to the Governor Act contain no provision permitting the portability or transfer of the status of contributor of the Contributory Scheme.
Further amendments were made to the Magistrates Act by the Superannuation (Miscellaneous and Consequential Amendments) Act 2000 (Tas). Specifically, s 10(3) of the Magistrates Act was omitted, with effect from 13 December 2000, and s 4(6) was inserted. Curiously, s 10(3) was reinstated in May 2013 with retrospective effect from its original omission. Section 4(6) of the Magistrates Act relevantly provides that, where a person is appointed as a magistrate:
·he or she is not eligible “to become” a member of the Contributory Scheme,
·the application of the Public Sector Reform Act extends to the magistrate as if he or she were an employee for the purposes of the Public Sector Reform Act, and
·he or she is to be a member of the Accumulation Scheme.
However, under s 4(9), s 4(6) does not apply to a person who, immediately before his or her appointment as a magistrate, was a contributor of the Contributory Scheme. Thus the status of contributor of the Contributory Scheme was portable when that contributor was appointed as a magistrate.

The 2005 Regulations

Part 5 of the 2005 Regulations deals with “Membership, Contributions and Benefits” in relation to the Contributory Scheme. Part 5 consists of regs 27 to 58 and is divided into divisions as follows:
·Division 1 – Preliminary rr 27-28
·Division 2 – Memberships rr 29-32
·Division 3 – Contributions rr 33-43
·Division 4 – Lump sum benefits rr 44-56
·Division 5 – Interim pensions rr 57-68
·Division 6 – Prescribed arrangements rr 59-60.
By reg 27, Pt 5 does not apply to an “employee” within the meaning of the Public Sector Reform Act who was appointed on or after the Commencement Day. The term “employee” was defined in the Public Sector Reform Act as a person, other than a person excluded from the application of the 1994 Regulations, who is employed in any position or capacity:
·under the Tasmanian State Service Act 1984, or
·by a prescribed authority, or
·by a state owned company, or
·by any other body or person carrying on an industry or undertaking for or on behalf of the State.
The term was also defined to include a police officer.
The term “employee” is defined in reg 3 of the 2005 Regulations as a person “appointed or employed in any position or capacity … in any industry or undertaking carried on by or on behalf of the State”, other than a person mentioned in reg 6(1). Under reg 6(1)(f), the 2005 Regulations do not apply to a person engaged in an Agency who is not an employee within the meaning of the Superannuation Guarantee (Administration) Act 1992 (Cth) (the Guarantee Act).
Section 12 of the Guarantee Act relevantly provides that “employee” and “employer” have their ordinary meaning, subject to the expansion of the meaning in ss 12(2) to 12(11). Section 12(9) relevantly provides that a person who holds or performs the duties of an appointment, office or position under a law of a State, or is otherwise in the service of a State, is an employee of the State. A judge appointed under the Supreme Court Act would be a person who holds, and performs the duties of, an appointment, office or position under a law of Tasmania, namely, the Supreme Court Act. The term “Agency” is defined in the 2005 Regulations as including a government department. The Department of Justice is a government department. It might be assumed that the Supreme Court is administered by the Department of Justice. Accordingly, a judge would not be excluded from the definition of “employee”, assuming, in the first place, that a judge would be an employee within the definition.
Judges are not employees, and the term “employee”, in its ordinary meaning, would not include a judge: Re Australian Education Union; Ex parte Victoria (1995) 184 CLR 188 at 233 and Austin v The Commonwealth (2003) 215 CLR 185 at [25]-[28] (Austin’s Case). The principle that a judge is not an employee is fundamental to the separation of powers between the judiciary, on the one hand, and the legislature and the executive, on the other. Before legislation can be construed as treating a judge as an employee for any purpose, the language of the legislation must be clear. Thus, where the 2005 Regulations seek to define the word “employee”, it should be clear from the legislative scheme that the term is to include a judge. That must be particularly so where the new scheme encompassed in the 2005 Regulations replaced the scheme encompassed by the 1994 Regulations, a scheme that clearly excluded judges.
A judge holds a statutory office but, in the common law sense of the term, is not an employee: Austin’s Case at [105]. On the other hand, the term “employee” may take colour from a particular statutory context. Thus, s 12(9) of the Guarantee Act expands the ordinary meaning of the term “employee” and classifies a person holding office under a law of a state as an employee of that state. In Austin’sCase, the High Court observed that the case stated was silent as to whether New South Wales or Victoria had any superannuation guarantee shortfalls in respect of the plaintiffs, who were judges. That is to say, it appears to be implicit in what the High Court said that a judge is an employee within the meaning of s 12(9) of the Guarantee Act, as a person holding office under a law of a State, and therefore the 2005 Regulations are not made inapplicable to a judge by reg 6(1)(f) of the 2005 Regulations.
Regulation 33(1) relevantly provides that an employee under the age of 70 years who is an existing contributor must contribute to the Contributory Scheme until attaining the age of 70 years. Under reg 33(3), a person who, immediately before the Commencement Day, was a contributor must continue to contribute at his or her commensurate rate of contribution. Under reg 34(1), the contributions of an employee are to commence on the day on which he or she is appointed to the office or position by virtue of which he or she is an employee. Under reg 34(3)(a), contributions cease to be payable, relevantly, on the day on which a contributor ceases to be an employee. Regulation 36 specifies the rates of contributions by contributors.
The term “contributor” is defined in the 2005 Regulations as including:
·any employee who is contributing to the Contributory Scheme,
·an employee who is required to contribute to the Contributory Scheme but who has not commenced to pay contributions,
·an employee who is not contributing to the Contributory Scheme while on approved leave without pay, and
·an employee who has ceased to contribute by reason of his or her age.
The Respondent became liable to contribute to the Contributory Scheme when she was appointed as a magistrate. It is common ground that the Respondent was an existing contributor within the meaning of reg 33 of the 2005 Regulations.
Regulation 42(1) requires the Board to establish an account for each contributor. Contributions credited to that account, together with any interest that is credited under reg 42(2), less certain deductions for tax, are to vest in the contributor. Regulation 42(2) provides that a contributor is entitled to interest on any contributions or other payments made by the contributor to the Board which have been credited to his or her account. An account was established by the Respondent as a contributor when she was appointed as a magistrate.
Regulation 47(1) relevantly provides that, if a contributor retires after attaining the preservation age but before attaining the age of 65 years, he or she is entitled to a lump sum benefit calculated in accordance with the formula set out in that regulation. Regulation 48 provides for payment of a lump sum benefit in the event of redundancy or compulsory retirement. Regulations 50 and 51 provide for payment of a lump sum benefit where a contributor dies or is determined to be suffering from total and permanent incapacity either before attaining the age of 70 years or the age of 65 years according to whether the contributor is an amalgamated contributor or limited benefits contributor.
Regulation 52 relevantly provides that, if a contributor ceases, before attaining the preservation age, to be a contributor by reason of resignation, he or she is entitled to payment of a lump sum benefit as provided in that regulation, to be calculated in accordance with formulae set out in reg 52(3). Regulation 54(2) relevantly provides that a benefit in respect of a contributor who, at the time of his or her resignation, is aged less than the preservation age is to be preserved as provided by reg 54. Preservation age varies between 55 years and 60 years, according to the date of birth of the contributor.
Regulation 53 relevantly provides for payment of a lump sum benefit, on death or retirement or on attaining the age of 70 years, whichever is the earlier, to a contributor who continues to be a permanent employee after attaining the age of 65. The lump sum benefit is to be calculated in accordance with the formula set out in reg 53.
Regulation 119 relevantly provides that, where the service of a contributor is broken for a period not exceeding a specified maximum and that person makes a request in writing to the Board within three months after again becoming a permanent employee, the Board may determine that the break does not affect the continuity of that person’s service. Section 4(7) of the Public Sector Reform Act would then apply and the prohibition in s 4(1) on the Contributory Scheme applying to that person would not apply.

The Dispute between the Respondent and the Board

It is common ground that, with effect on 6 April 1994, the Respondent was appointed as a magistrate pursuant to the Magistrates Act. From that day until 8 November 2009, the Respondent held appointment as a magistrate pursuant to the Magistrates Act.
In her statement of claim, the Respondent asserted that, on 8 November 2009, she resigned her appointment as a magistrate for the purpose of being appointed as a judge of the Supreme Court and that, on 9 November 2009, she was appointed as a judge of the Supreme Court pursuant to the 1887 Supreme Court Act. Those assertions were admitted by the Board in its defence. Probably because of the admission, there was no evidence as to the appointment of the Respondent as a magistrate. More importantly, there was no evidence as to her resignation as a magistrate or her appointment as a judge of the Supreme Court.

Section 4 of the Magistrates Act provides that, subject to that Act, the Governor may appoint such magistrates as the Governor thinks fit. No procedure is specified in the Magistrates Act for resignation of a magistrate. It would therefore be necessary for a resignation to be accepted by the Governor. Section 5 of the 1887 Supreme Court Act provides that the nomination and appointment of the judges of the Supreme Court is to be by the Governor, by letters patent under the Public Seal of the State. Having regard to those provisions, an inference should be drawn that an instrument of resignation was brought into existence before 8 November 2009, and that letters patent were brought into existence at about the same time as the instrument of resignation, or shortly after the instrument of resignation.
Clearly enough, having been appointed as a magistrate in 1994, the Respondent remained a contributor of the Contributory Scheme for at least the duration of her appointment as a magistrate. The Respondent claims to have continued as a contributor of the Contributory Scheme notwithstanding her resignation as a magistrate and appointment as a judge.
In essence, the Respondent’s argument may be summarised as follows:
·By s 10(3) of the Magistrates Act, the Respondent was an “employee” for the purposes of the 1993 Act;
·The operation of a system of justice to decide disputes between citizen and citizen and between citizen and the State is an undertaking carried on by or on behalf of the State within the meaning of the 2005 Regulations;
·A judge is a person appointed in a position in that undertaking and, accordingly, is an “employee” for the purposes of the 2005 Regulations;
·Therefore, the Respondent was an “employee” of the State both before and after her resignation and appointment took effect and there was no break in the continuity of her position as an “employee” by reason of her resignation as a magistrate and appointment as a judge;
·Accordingly, she did not cease to be an “employee” when she ceased to hold the office of magistrate and her resignation as a magistrate did not involve a cessation of employment;
·Therefore ss 4(1) and 6(1) of the Public Sector Reform Act had no operation in relation to her as an “employee” since, because of that continuity of employment, she was not appointed or engaged for the purposes of those provisions on or after the Commencement Day;
·Therefore, her resignation did not engage reg 34(3) of the 2005 Regulations, such that contributions did not cease to be payable and the Respondent remained a contributor of the Contributory Scheme.
The Board, on the other hand, contends that the Respondent ceased to be a contributor of the Contributory Scheme upon her resignation as a magistrate becoming effective and was thereafter no longer entitled to be a contributor of the Contributory Scheme. The Board says that she is entitled only to be a member of the Accumulation Scheme.
On 16 December 2009, the Board wrote to the Respondent informing her that her “cessation of employment benefit” had been processed. The Board enclosed an “exit statement” showing a gross lump sum benefit together with details of the calculation of the benefit. The Respondent responded on 5 January 2010, asserting that she had at all relevant times, and currently, remained an employee of the State. She asked the Board to advise as to the legislative basis upon which the Board’s position had been adopted. On 23 March 2010, the Board wrote to the Respondent again, outlining the basis upon which it contended that the effect of the Respondent’s resignation as a magistrate was that she had resigned as a contributor and that reg 52 was enlivened to entitle her to payment of a lump sum benefit.
Thus the issue that arose is whether, upon her resignation as a magistrate, the Respondent ceased to be a contributor of the Contributory Scheme. If she did, she was, as a consequence, precluded from being a contributor because, under s 8(3) of the Supreme Court Act, she was not eligible to become a contributor of the Contributory Scheme.
The Contributory Scheme is more generous to members than the Accumulation Scheme. Thus, the evidence showed that the benefit to which the Respondent would be entitled on retirement, if she remained a contributor of the Contributory Scheme, is significantly greater than the benefit to which she will be entitled on retirement as a member of the Accumulation Scheme.

The Proceedings before the Primary Judge

The Respondent commenced proceedings in the Supreme Court claiming declarations that, at all times from 4 April 1996, she has been and remains a contributor of the Contributory Scheme, as provided for in Pt 5 of the 2005 Regulations and that her entitlements, pursuant to the Contributory Scheme, are equivalent to those that she would have had, or enjoyed, if the Board had not purported to displace her status as a contributor of the Contributory Scheme. She also claimed orders requiring the Board to take such steps as are necessary to reinstate her account as a contributor of the Contributory Scheme, by making all the necessary adjustments and calculations and by paying all such further sum as may be necessary to put her in the position she would have been in had the Board not purported to close her account as a contributor of the Contributory Scheme. She claimed, in the alternative, a declaration that she has remained at all material times from 9 November 2009 a contributor of the Contributory Scheme in combination with her status as a contributor of the Accumulation Scheme and claimed further relief requiring the Board to calculate and preserve her entitlements pursuant to each scheme.
On 22 March 2016, an acting judge of the Supreme Court (the primary judge) upheld the contentions advanced on behalf of the Respondent and made declarations and orders to the effect of the following:
1Declare that at all material times from 4 April 1996 the Respondent has been and remains a contributor of the Contributory Scheme.
2Declare that the Board is bound to reinstate the Respondent’s account, as a contributor of the Contributory Scheme, from 9 November 2009, such that the Respondent’s entitlements pursuant to the Contributory Scheme are equivalent to those that she would have had, or enjoyed, if the Board had not purported to displace her status as a contributor of the Contributory Scheme.
3The Board pay the Respondent’s costs of the action.
The primary judge considered that the natural meaning of “become” in s 8(3) of the Supreme Court Act directed attention to some point in time on or after a person’s appointment as a judge. Thus, his Honour held, the expression assumed that the person appointed was not already a member of the Contributory Scheme. However, his Honour said, the Respondent was undoubtedly a member of the Contributory Scheme while she continued to hold her appointment as a magistrate. His Honour characterised the question as being whether the Respondent ceased to be a contributor upon her resignation from the office of magistrate.
The primary judge held that the Respondent was appointed as a judge within the definition of employee for the purposes of the 2005 Regulations. His Honour also held that the term undertaking in the definition of employee should be read as extending to any activity carried on by the State, including, at least the operation of a system of justice to decide disputes between citizen and citizen and between citizen and the State.
The primary judge concluded that the definition of “employee” in the 2005 Regulations extends to a judge, at least in the context of continuing rights to membership in the Contributory Scheme. His Honour considered that the possibility of the appointment of a magistrate as a judge of the Supreme Court was one of which Parliament must be taken to have been aware, and accordingly the general policy of protecting those who have rights under the Contributory Scheme and continue working in the public sector can be discerned in the language of the legislation and regulations.
The primary judge concluded that, in circumstances where the Respondent resigned her office as magistrate for the purpose of being appointed to the office of judge of the Supreme Court, with effect from the following day, it would be impossible to say that her employment had ever been terminated: Reseck v Federal Commissioner of Taxation (1975) 133 CLR 45 at 50. His Honour drew an analogy, by way of illustration, with a sergeant being commissioned as a lieutenant, and suggested that one would not say there was any cessation of service in the Army, even though there was appointment to a new office. His Honour considered that, just as one might say that the sergeant had been promoted, so it could be said about the Respondent’s elevation to the Supreme Court.
The primary judge observed that it was common ground on the pleadings that, on 8 November 2009, the Respondent resigned her appointment as a magistrate for the purpose of being appointed a judge of the Supreme Court. His Honour considered that that pointed strongly to a continuity of service in the judicial arm of the government of the State. His Honour observed that, since the law takes no account of parts of the day (see Prowse v McIntyre (1963) 111 CLR 264 at 274), the Respondent’s appointment as a magistrate continued until midnight on 8 November 2009 and her appointment as a judge of the Supreme Court commenced immediately after that point, when 9 November 2009 began.
After referring to the presumption that legislation is not intended to interfere with vested interests (Greville v Williams (1906) 4 CLR 694 at 703) the primary judge referred to two general purposes that underlay the complicated accumulation of statutes and regulations. First, for obvious fiscal reasons, the State could no longer afford the Contributory Scheme. Secondly, those working in the public sector who had arranged their lives in dependence on rights under the Contributory Scheme should not be disadvantaged. His Honour considered that a reasonable reading of the language of the relevant provisions could give effect to the second purpose.

The Appeal

By notice of appeal filed on 11 April 2016, the Board appeals from the orders made by the primary judge. This Full Court, consisting of three acting judges of the Supreme Court, has been constituted to hear and determine the appeal and has now heard full argument from the parties.
In its notice of appeal, the Board relies on four grounds. Ground 1 is that the primary judge erred in law in holding that the term “undertaking” appearing in the definition of employee in reg 3 of the 2005 Regulations should be read as extending to any activity carried on by the State. Ground 2 is that the primary judge erred in holding that the term “undertaking” should be read as extending to the operation of a system of justice to decide disputes between citizen and citizen and between citizen and State. Ground 3 is that the primary judge erred in law in failing to hold that, upon the Respondent resigning from the office of magistrate she thereby ceased to be a contributor within the meaning of the 2005 Regulations and is not thereafter eligible to be or become a contributor otherwise than in accordance with reg 119. Ground 4 is that the primary judge erred in fact and in law in holding or finding that the Respondent’s elevation to the Supreme Court was, or was tantamount to, a promotion within the judicial arm of the government of the State.
Ground 3 raises the critical question. It is therefore desirable to deal with Ground 3 first. The question raised in the proceedings at first instance and the appeal is whether, upon her resignation as a magistrate becoming effective, at midnight on 8 November 2009, the Respondent ceased to be a contributor of the Contributory Scheme. If she did cease to be a contributor, the consequence of s 8(3) of the 1887 Supreme Court Act was that, when her appointment as a judge of the Supreme Court took effect immediately after her resignation took effect, she was not eligible to become a member of the Contributory Scheme again; rather, under s 8(3)(b), she was to be a member of the Accumulation Scheme.
The Respondent’s contentions in relation to Ground 3 relied on two broad propositions. The first was the presumption in favour of vested interests. The second concerned continuity of employment.

Vested Interest

First, it was said that, as at 8 November 2009, the Respondent had acquired valuable rights and had an expectation of future valuable entitlements by reason of her status as a contributor of the Contributory Scheme. She contended that those rights, and her expectation of the receipt of future rights, constituted property and that the various enactments in question should be construed in light of the presumption against interference with vested rights. The Respondent relied on the principle that, where a statute is capable of more than one construction, the construction that least interferes with private property rights will be preferred (citing R&R Fazzolari Pty Limited v Parramatta City Council (2009) 237 CLR 603 at [40]-[43]), and drew attention to observations made in the Minister’s speech on the second reading of the Bills for the various enactments to the effect that no existing rights were to be affected.
The Respondent contended that, in the case of judicial appointment, the presumption against interference with vested rights has greater force, since an erosion of judicial entitlements would strike at judicial independence. That principle certainly has great force since the remuneration of judges is functionally relevant to the maintenance of judicial independence: Austin’s Case at [286].
However, it is clear, on analysis of the changes wrought by the various enactments described above, that no vested or existing rights were taken away by the enactments in question. To the extent that the Respondent might be seen as being worse off as a consequence of her resignation from the position of magistrate and her appointment as a judge of the Supreme Court, that consequence is entirely the consequence of her decision to resign as a magistrate and accept appointment as a judge. The Respondent could have remained as a magistrate. Had she done so, she would have continued to be a contributor of the Contributory Scheme.
However, the terms of the 2005 Regulations set out the benefits to be payable in specified circumstances. One circumstance in which a benefit was to be payable was resignation before reaching a particular age. That benefit, which was payable under the 2005 Regulations, was not affected in any way by the enactments in question. Upon her resignation, the Respondent became entitled to the benefit payable under reg 52. That right was not adversely affected by the enactments.
There is nothing in the 2005 Regulations or any of the other enactments to suggest that resignation from the office or position by virtue of which a person is an employee for some purposes is different from resignation for other purposes. The Respondent attaches some store to the fact that she resigned as a magistrate in order to be appointed as a judge. Whether or not it might have been possible for the Respondent to remain as a magistrate and still be appointed as a judge of the Supreme Court, she in fact resigned as a magistrate. It matters not that the purpose of her resignation was to enable her to take up an appointment as a judge. There could be no doubt that, if the Respondent had resigned as a magistrate with a view to retiring altogether, she would have been entitled to the same lump sum benefit.

Continuity

The second proposition relied on by the Respondent is that the continuity of her status as an “employee” was not affected by her resignation as a magistrate, in circumstances where, for superannuation purposes, she was to be regarded as an “employee” of the State, both as a magistrate and as a judge, and no time elapsed between the taking effect of her resignation as a magistrate and her appointment as a judge. The proposition relied on the conclusion reached by the primary judge that, for the purposes of the various enactments, the Respondent was entitled to be treated as an employee both before and after her resignation and appointment took effect, such that her resignation as a magistrate was irrelevant for superannuation purposes.
However, that contention glosses over the elaborate provisions put in place by the Public Sector Reform Act and the PJSLO Reform Act. There is nothing in the enactments to suggest that, for the purposes of the various superannuation arrangements put in place, the significant change in status from being a magistrate and becoming a judge was to be ignored.
For the Respondent’s contentions to succeed, it would be necessary to ignore the clear language of s 8(3) of the 1887 Supreme Court Act. Sections 8(3)(a) and 8(3)(b) draw a clear dichotomy between being a member of the Contributory Scheme and being a member of the Accumulation Scheme. The Respondent contended that s 8(3)(a) was irrelevant because she was already a member of the Contributory Scheme and the fact that she was not eligible to become a member was of no consequence. However, s 8(3)(b) then provides that, where a person is appointed a judge on or after the Transfer Day, the person is to be a member of the Accumulation Scheme.
While the Respondent claimed in her statement of claim, in the alternative, that she was entitled to be a member of both the Contributory Scheme and the Accumulation Scheme, it is clear that that is not the intention of s 8. Once it is accepted that s 8(3)(b) must be read in accordance with its unequivocal terms as applying to the Respondent, the only meaning to be given to s 8(3)(a) is that, having been appointed as a judge after the Transfer Day, she is ineligible to be a member of the Contributory Scheme. The clear assumption underlying the provision is that, at the moment when a person’s appointment as a judge becomes effective, the person is no longer an employee or the holder of any other office or appointment.
Regulation 27 expressly provides that Pt 5 does not apply to an employee, within the meaning of the Public Sector Reform Act, who is or was appointed or engaged on or after the Commencement Day. The Respondent was an existing contributor at the time of her resignation as a magistrate and, accordingly, at least up to that time, was obliged, under reg 33, to contribute to the Contributory Scheme. However, under reg 34(3), contributions ceased to be payable on the day on which she ceased to be an employee. Under reg 52, the Respondent was entitled to a benefit if she ceased to be a contributor by reason of resignation.
The language of reg 34 and reg 52 of the 2005 Regulations is clear. Regulation 34 refers to cessation of contributions when a contributor ceases to be an employee. Regulation 52 refers to certain benefits becoming payable upon resignation. Resignation must entail ceasing to be an employee. When the 2005 Regulations refer to “resignation”, they can be understood as referring only to resignation from the position or office by virtue of which the person became a contributor of the Contributory Scheme. The 2005 Regulations do not contemplate the possibility that a person might resign the office by virtue of which he or she became a contributor of the Contributory Scheme but still remain as a contributor.
It was by reason of her appointment as a magistrate that the Respondent became a contributor of the Contributory Scheme. No other basis upon which she could have become a contributor has been suggested. Further, it is clear that the Respondent resigned her office as a magistrate. Therefore, she ceased to be an employee within the meaning of reg 34. Therefore, contributions ceased to be payable by her, and she became entitled to payment of a lump sum benefit.

In addition, by the operation of s 10(3) of the Magistrates Act, the Respondent was an employee for the purposes of the 1993 Act until she ceased to be a magistrate at midnight on 8 November 2009. By the operation of s 8(3)(c) of the 1887 Supreme Court Act, upon her appointment as a judge becoming effective, immediately upon her resignation as a magistrate becoming effective, references to an employee in the Public Sector Reform Act are to be read as including references to the Respondent, since she was a judge from that moment. That is to say, from that moment, the Respondent was an employee appointed after the Transfer Day. At that point, she was no longer a contributor of the Contributory Scheme. Sections 4(1) and 6(1) of the Public Sector Reform Act therefore applied to her. Accordingly, the Contributory Scheme no longer applied to her, pursuant to reg 27 of the 2005 Regulations, and she became a member of the Accumulation Scheme.
Upon the Respondent’s resignation as a magistrate taking effect, she became entitled to a benefit under reg 52. Had she not resigned, she would have been entitled to continue, so long as she held the office of magistrate, to make contributions and would have been entitled to a benefit calculated in accordance with the 2005 Regulations upon subsequent resignation, retirement or death. Nothing in the Public Sector Reform Act or the PJSLO Reform Act took away that entitlement.
That conclusion is supported by the presence of s 4(7) of the Public Sector Reform Act and reg 119 of the 2005 Regulations. Thus, the legislative scheme contemplates the possibility that a “break in service” may not necessarily be fatal to continuity of membership of the Contributory Scheme. It would have been open to the Respondent to request the Board to determine that any break in service that occurred by reason of her resignation and appointment was not to affect the continuation of her service for the purposes of the 2005 Regulations. The Respondent made no such request.
The conclusion is also supported by the provisions outlined above concerning portability of the status of contributor of the Contributory Scheme for persons appointed as the DPP, the Solicitor-General, Associate Judge or a magistrate. The absence of any such provision in relation to the appointment of judges indicates that portability was not contemplated.
Thus, the Respondent’s resignation as a magistrate is an insuperable hurdle for her argument. Whether or not, for the purposes of the raft of enactments in question she was to be regarded as an employee both before and after her resignation and appointment, she ceased to be a contributor of the Contributory Scheme upon resigning as a magistrate. The effect of s 8(3)(a) was that she could not thereafter become a member of the Contributory Scheme.

Other Grounds

The primary judge erred in concluding that the Respondent’s resignation as a magistrate did not have that effect. Ground 3 of the Board’s notice of appeal should be upheld. In those circumstances, it is unnecessary to deal with the other grounds.

Conclusion

It follows that the appeal should be allowed. The declarations and orders made by the primary judge should be set aside. In lieu of those orders, there should be an order that the proceedings be dismissed. We would consider submissions about costs.

[2016] TASFC 9

19 October 2016

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Appeal

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