EXPLANATORY STATEMENT
Statutory Rules 1989 No 335
Remuneration Tribunal (Miscellaneous Provisions) Regulations (Amendment)
(Issued by the Authority of the Minister for Industrial Relations)
The Remuneration Tribunal established by the Remuneration Tribunal Act 1973 (the Act) is empowered under subsection 6(2) of the Act to inquire into and report on the remuneration payable to, inter alia, Justices or Judges of federal courts. The Tribunal, however, may not determine the remuneration to be paid to the holders of those offices. At present the Tribunal has jurisdiction to determine remuneration only for the holders of certain offices, not including judicial offices. This is because judicial offices are currently excluded from the definition of a “public office” in subsection 3(4) of the Act.
Part 3 of the Judicial and Statutory Officers Remuneration Legislation Amendment Bill 1989 (the Bill) seeks to amend the Act to empower the Remuneration Tribunal to determine remuneration for a Justice or Judge of a federal court or the Supreme Court of a Territory, or a person who has the same status as such a Justice or Judge. This will be achieved by omitting such persons from the exemption provided in the definition of “public office” in subsection 3(4) of the Act and omitting the current provisions for inquiry into and reporting on such remuneration under section 6 of the Act.
The Bill was passed by the Parliament on 23 November 1989. Part 3 of the Bill will commence upon the Bill receiving the royal assent. Upon the commencement of Part 3 of the Bill the Remuneration Tribunal will have jurisdiction to determine the remuneration payable to a Justice or Judge of a federal court or of the Supreme Court of a State or Territory, or a person who has the same status as such a Justice or Judge.
Some Judges of the Family Court of Australia also hold commissions on the Family Court of Western Australia. Under an agreement between the Commonwealth and the State of Western Australia, these Judges are remunerated by the Commonwealth as Judges of the Family Court of Australia.
Upon the commencement of Part 3 of the Bill the Remuneration Tribunal will be able to determine the remuneration payable to all Judges of the Family Court of Australia, including those who also hold a commission as a Judge of the Family Court of Western Australia. Unless a regulation was made, however, prescribing the office of Judge of the Family Court of Western Australia for the purposes of subsection 7(12) of the Act, those Judges of the Family Court of Australia who are Judges of the Family Court of Western Australia would not have been entitled to be paid any remuneration as Judges of the Family Court of Australia, despite the fact that the Tribunal will have jurisdiction to determine their remuneration.
This is because subsection 7(12) of the Act provides that, except as prescribed, a person is not entitled to be paid any remuneration in respect of his holding, or performing the duties of, a public office if the person holds a judicial office in the service of the Government of a State or of a country other than Australia.
Accordingly, an amendment of the Remuneration Tribunal (Miscellaneous Provisions) Regulations has been made which prescribes the office of Judge of the Family Court of Western Australia for the purposes of subsection 7(12) of the Act. The amendment operates from the date of commencement of Part 3 of the Bill and provides that a person who holds office as a Judge of the Family Court of Australia and who also holds office as a Judge of the Family Court of the State of Western Australia is entitled to be paid remuneration determined under the Act in respect of the office of Judge of the Family Court of Australia.
Section 13 of the Remuneration Tribunal Act 1973 (the Act) provides that the Governor-General may make regulations, not inconsistent with the Act, prescribing all matters required or permitted by the Act to be prescribed, or necessary or convenient to be prescribed for carrying out or giving effect to the Act.
Overview
The Remuneration Tribunal (Miscellaneous Provisions) Regulations (Amendment) Statutory Rules 1989 No 335 were enacted to address the gap in the Remuneration Tribunal Act 1973, which previously excluded judicial offices from the definition of a “public office” and thereby limited the Tribunal’s jurisdiction over the remuneration of federal court judges and judges of the Supreme Court of a State or Territory. This amendment was necessary to align the Tribunal's powers with the intent of the Judicial and Statutory Officers Remuneration Legislation Amendment Bill 1989, which was passed by the Parliament on 23 November 1989. The policy objective of these regulations was to ensure that the Remuneration Tribunal could determine the remuneration for all judges of the Family Court of Australia, including those who hold a commission as a Judge of the Family Court of Western Australia, by amending the definition to include these judicial roles within its scope. The regulations were issued by the authority of the Minister for Industrial Relations and operate from the date of commencement of Part 3 of the Bill.
Scope and Application
The Remuneration Tribunal, established under the Remuneration Tribunal Act 1973, has historically been limited in its jurisdiction to determining remuneration for certain public officers but has been explicitly excluded from determining the remuneration of federal court judges or judges of supreme courts of states and territories. This limitation arises from the definition of "public office" in the Act, which did not encompass judicial offices. However, the Judicial and Statutory Officers Remuneration Legislation Amendment Bill 1989, which was passed by Parliament on 23 November 1989, amends the Act to empower the Remuneration Tribunal to determine the remuneration for federal court judges, supreme court judges of states and territories, and individuals with equivalent status. This amendment removes the exclusion of judicial offices from the definition of "public office" and eliminates the previous requirement for the Tribunal to merely inquire into and report on the remuneration of these judicial officers. Upon the commencement of the relevant part of the Bill, the Tribunal will gain jurisdiction over these judicial positions. Moreover, the amendment rectifies a potential oversight concerning judges of the Family Court of Australia who also serve as judges of the Family Court of Western Australia, ensuring they receive remuneration for their federal role despite their dual commissions. The Remuneration Tribunal (Miscellaneous Provisions) Regulations have been amended accordingly to reflect these changes, ensuring that these judges are entitled to remuneration as prescribed by the Act.
Key Provisions
The Remuneration Tribunal (Miscellaneous Provisions) Regulations (Amendment) Statutory Rules 1989 No 335, issued under the authority of the Minister for Industrial Relations, amend existing regulations to provide that the Remuneration Tribunal now has the authority to determine the remuneration of Justices or Judges of federal courts or of the Supreme Court of a State or Territory, or a person with the same status (section 3(4) and section 6(2) of the Remuneration Tribunal Act 1973). This change is a result of the Judicial and Statutory Officers Remuneration Legislation Amendment Bill 1989, which received Royal Assent on 23 November 1989 and will take effect upon its commencement. This amendment ensures that the Remuneration Tribunal can now determine remuneration for all Judges of the Family Court of Australia, including those who hold a commission as a Judge of the Family Court of Western Australia.
The amendment imposes specific obligations on the Remuneration Tribunal, requiring it to determine the remuneration for the specified judicial offices. Additionally, the Tribunal must ensure that any remuneration it determines complies with the provisions of the Remuneration Tribunal Act 1973. Furthermore, the Tribunal must ensure that the remuneration determined for Judges of the Family Court of Australia who also hold a commission as a Judge of the Family Court of Western Australia does not contravene the provisions of subsection 7(12) of the Act.
Any breaches of the provisions of the Remuneration Tribunal Act 1973 or the regulations made under it may result in civil or criminal penalties, depending on the nature and severity of the breach. The specific penalties for breaches are not detailed in the Explanatory Statement, but generally, the Act provides for both civil and criminal sanctions, including fines and imprisonment, for serious breaches. The precise penalties are to be found within the Act itself and any related regulations. The Remuneration Tribunal must ensure compliance with these provisions to avoid any legal repercussions.