Explanatory Statement: Determination 2017/22:

Remuneration and Allowances for Judical and Related Offices

1. The Remuneration Tribunal Act 1973 (the Act) establishes the Remuneration Tribunal (the Tribunal) as an independent statutory authority responsible for reporting on and determining the remuneration, allowances and expenses of key Commonwealth office holders.  These include members of Parliament, Judges of Federal Courts, most full-time and part-time holders of public offices including Specified Statutory Offices and Principal Executive Offices.

Consultation

2.     Section 11 of the Act advises that in the performance of its functions the Tribunal:

• may inform itself in such manner as it thinks fit;
• may receive written or oral statements;
• is not required to conduct any proceeding in a formal manner; and
• is not bound by the rules of evidence.

3.     The Tribunal normally receives submissions on remuneration from a portfolio minister, or a secretary, program manager or employing body (in respect of a Principal Executive Office) with responsibility for the relevant office(s).  The Tribunal will normally seek the views of the relevant Portfolio Minister prior to determining remuneration for an office.

4.     The Tribunal may reach a decision based on the information provided in the submission and other publicly available information such as portfolio budget statements, annual reports, corporate plans, legislation and media releases.  On occasion it may wish to meet with relevant parties or seek further information from the relevant minister or person making the submission.

5.     Amongst other relevant matters in deliberating on appropriate remuneration for an office the Tribunal informs itself on:

• the main functions, responsibilities and accountabilities of the office;
• the organisational structure, budget and workforce;
• the requisite characteristics, skills or qualifications required of the office holder(s); and
• the remuneration of similar, comparator, offices within its jurisdiction. 

Federal Circuit Court of Australia

6.     The Tribunal received a submission from the then Chief Judge of the Federal Circuit Court, the Honourable John H. Pascoe AC CVO, covering a number of matters including a request to change recreation leave arrangements for Judges of the Federal Circuit Court.  The Tribunal also received a letter from the Attorney General, Senator the Hon George Brandis QC, indicating his support for the changes to recreation leave.  The Chief Judge’s submission provided detail on the purpose of the changed arrangements, and the impact on the operations of the Court. 

7.     In effect, the determination:

1. increases recreation leave entitlements for Judges of the Federal Circuit Court appointed from 1 January 2018 from four weeks to six weeks, accruing at the time of the Judge’s appointment, and for each other year – on 1 January of that year, to be used only in the year in which the leave accrued, and to be paid on leaving office as though the Judge were then to take the balance of the recreation leave to which they were entitled.

Example 1: A Judge accrues six weeks recreation leave on 1 January of a year, the Judge does not take any leave during that year.  The Judge accrues 6 weeks recreation leave on 1 January in the subsequent year, and forfeits the previous year’s entitlement.

Example 2: A Judge appointed on 1 July of the year accrues, on appointment, three weeks recreation leave, that is required to be used within that same year, or is forfeited.

Example 3: A Judge accrues six weeks recreation leave on 1 January of a year, the Judge leaves office on 1 July of that year, not having accessed any of that leave, and is paid on leaving office as though the Judge was to have taken six weeks recreation leave.

b.      preserves existing recreation leave entitlements for Judges of the Federal Circuit Court appointed prior to 1 January 2018 (four weeks of paid recreation leave) accruing on 1 January each year (with provisions for cashing out and purchasing leave), with a once only revocable election to move to the new arrangements, and to retain his or her balance of recreation leave that accrued immediately before the election took effect, subject to certain conditions.

Example 4: A Judge appointed prior to 1 January 2018 with an accrued recreation leave balance of four weeks makes an election on 20 December to move to the new recreation leave arrangements.  On 1 January in the following year, the election takes effect, and the Judge accrues six weeks recreation leave with the carryover of four weeks remaining in a ‘bank’.  The Judge can take up to 6 weeks recreation leave in that year, and will retain the ‘bank’ of four weeks leave.  The four weeks will continue to be retained until such a time as the Judge leaves office when it will be paid out, or alternatively, will become available for use if the original election to move to the new arrangements is revoked (the leave would be available when the revocation takes effect).

Retrospectivity 

8.     Any retrospective application of this determination is in accordance with subsection 12(2) of the Legislation Act 2003 as it does not affect the rights of a person (other than the Commonwealth or an authority of the Commonwealth) to that person’s disadvantage, nor does it impose any liability on such a person.

The power to repeal, rescind and revoke, amend and vary

9.     Under subsection 33(3) of the Acts Interpretation Act 1901, where an Act confers a power to make, grant or issue any instrument of a legislative or administrative character (including rules, regulations or by-laws), the power shall be construed as including a power exercisable in the like manner and subject to the like conditions (if any) to repeal, rescind, revoke, amend, or vary any such instrument.

Details of the determination are as follows:

10. Clauses (i) and (ii) specify the authority for and commencement date of the determination.

11. Clause 1.1 specifies the Principal Determination (Number 9 of 2017 as amended) for the purposes of the determination.

12. Clause 1.2 sets revised recreation leave entitlements for a Judge of the Federal Circuit Court.

13. Clause 1.3 amends Clause 2.9 in the Principal Determination by omitting the words ‘Cashing out and purchase of recreation leave for Judges of the Federal Circuit Court: Judges of the Federal Court’ and replacing it with ‘Transitional provisions for recreation leave for Judges of the Federal Circuit Court appointed before 1 January 2018: Subject to Clause 2.9A, Judges of the Federal Circuit Court who were appointed before 1 January 2018’.

14. Clause 1.4 provides for a Judge of the Federal Circuit Court appointed before 1 January 2018 to make a once only revocable election to be covered by the new arrangements under Clause 1.2, for such an election or revocation to take effect on the 1 January following the election or revocation, and for the Judge to retain the balance of his or her recreation leave that had accrued immediately before the election or revocation took effect, subject to certain conditions.

Authority: Subsections 7(3AA)

 Remuneration Tribunal Act 1973