17Appointment of judges temporarily or during pleasure valid

17 Appointment of judges temporarily or during pleasure valid All commissions of appointment of qualified persons as judges or as deputy judges, to hold office or to act temporarily or during pleasure made before the commencement of this Act shall be and shall be held in all courts to be and to have been valid and effectual notwithstanding any existing Act or law to the contrary and all commissions of appointment of qualified persons as judges or as acting judges, to hold office or to act temporarily or during pleasure to be made after the said commencement shall be and shall be held in all courts to be valid and effectual notwithstanding any existing Act or law to the contrary. Pt 1 Div. 3AA (Heading and s. 17AAA) inserted by No. 24/2007 s. 4. Division 3AA—Professional development and training S. 17AAA inserted by No. 24/2007 s. 4. 17AAA Professional development and training (1) In this section— S. 17AAA(1) def. of *judicial officer* amended by Nos 24/2008 s. 51, 34/2010 s. 31, 5/2013 s. 27, 63/2013 s. 35, 3/2016 s. 29, 1/2022 s. 38. ***judicial officer*** means— (a) a judge including a reserve judge; or (b) an associate judge including a reserve associate judge; or (c) a judicial registrar. (2) The Chief Judge is responsible for directing the professional development and continuing education and training of judicial officers. (3) In discharging his or her responsibility under subsection (2) the Chief Judge may direct— (a) all judicial officers; or (b) a specified class of judicial officer; or (c) a specified judicial officer— to participate in a specified professional development or continuing education and training activity. (4) A direction under subsection (3) may be given orally or in writing. Pt 1 Div. 3A (Heading and s. 17A) inserted by No. 10117 s. 4(1). Pt 1 Div. 3A (Heading) amended by No. 24/2008 s. 52. Division 3A—Associate judges S. 17A inserted by No. 10117 s. 4(1), amended by Nos 16/1986 s. 8(c), 19/1989 s. 7(k), 64/1990 s. 5, 22/1995 s. 24, 46/1998 s. 7(Sch. 1), 31/2004 s. 11, 108/2004 s. 117(1)(Sch. 3 item 47), 16/2005 s. 7(3)(4), 18/2005 s. 18(Sch. 1 item 25.3), substituted by No. 24/2008 s. 53. 17A Associate judges (1) The Governor in Council may appoint one or more persons to be associate judges of the court. (2) An associate judge ceases to hold office only— (a) if he or she resigns by delivering to the Governor a signed letter of resignation; or (b) if he or she is removed from office by the Governor in Council in accordance with Part IIIAA of the **Constitution Act 1975**; or (c) if his or her office is abolished; or (d) if he or she is not capable of continuing in office because of subsection (5). (3) A person must not be appointed as an associate judge unless the person— (a) is or has been a judge, an associate judge or a magistrate of— (i) the High Court of Australia or of a court created by the Parliament of the Commonwealth; or (ii) a court of Victoria or of another State or of the Northern Territory or the Australian Capital Territory; or (b) is an Australian lawyer of at least 5 years' standing. (4) An associate judge— (a) is entitled to such salaries and allowances as are from time to time payable under section 17AA; and (b) is not subject to the **Public Administration Act 2004**. (5) A person who has attained the age of 70 years is not capable of being appointed to or continuing in office as an associate judge. S. 17ABA inserted by No. 24/2008 s. 54. 17ABA Functions of associate judges (1) The Chief Judge may assign duties to an associate judge. (2) An associate judge must carry out the duties from time to time assigned to him or her under subsection (1). (3) Without limiting subsection (1), an associate judge must— (a) assist in the general business of the court; and (b) perform such duties and exercise such powers and authorities as are imposed or conferred on the associate judge by or under this Act or any other Act or by the Rules. S. 17AA (Heading) inserted by No. 24/2008 s. 55(1), amended by No. 29/2015 s. 82(1). S. 17AA inserted by No. 22/1995 s. 25. 17AA Salaries, allowances and conditions of service of associate judges S. 17AA(1) amended by No. 4/2002 s. 12(3)(c), substituted by No. 38/2004 s. 13(4), amended by Nos 24/2008 s. 55(2)(a), 63/2013 s. 72(1), 29/2015 s. 82(2). (1) Each associate judge of the court shall be paid a salary at the rate for the time being applicable under the **Judicial Entitlements Act 2015**. Note to s. 17AA(1) inserted by No. 29/2015 s. 82(3). See section 5 of the **Judicial Entitlements Act 2015** for the rates of salaries, including pro-rata salaries of associate judges to whom a part-time service arrangement applies. S. 17AA(1A) inserted by No. 63/2013 s. 72(2), repealed by No. 29/2015 s. 82(4). S. 17AA(2) amended by No. 4/2002 s. 12(3)(c), substituted by No. 38/2004 s. 13(5), amended by No. 24/2008 s. 55(2)(a), substituted by No. 29/2015 s. 82(5). (2) Each associate judge is entitled to the allowances and the other conditions of service for that office that are for the time being applicable under the **Judicial Entitlements Act 2015**. S. 17AA(2A) inserted by No. 83/2008 s. 9(1), amended by No. 83/2008 s. 10, repealed by No. 29/2015 s. 82(6)(a). S. 17AA(2B) inserted by No. 83/2008 s. 9(1), repealed by No. 29/2015 s. 82(6)(a). S. 17AA(2C) inserted by No. 83/2008 s. 9(1), amended by No. 83/2008 s. 10(a), repealed by No. 29/2015 s. 82(6)(a). S. 17AA(2D) inserted by No. 83/2008 s. 9(1), repealed by No. 29/2015 s. 82(6)(a). S. 17AA(3) amended by No. 24/2008 s. 55(2)(b). (3) Nothing in this section authorises the salaries or the aggregate value of the allowances payable to the associate judges to be reduced. S. 17AA(3A) inserted by No. 83/2008 s. 9(2), amended by No. 83/2008 s. 10(c), repealed by No. 29/2015 s. 82(6)(b). S. 17AA(4) substituted by No. 1/2000 s. 4(3). (4) The following are to be paid out of the Consolidated Fund, which is appropriated to the necessary extent— S. 17AA(4)(a) amended by Nos 83/2008 s. 9(3), 29/2015 s. 64(1)(a). (a) the amounts (including the amount of any non-salary benefits) payable to or for an associate judge; and S. 17AA(4)(b) amended by Nos 24/2008 s. 55(2)(b), 67/2013 s. 649(Sch. 9 item 8(3)). (b) premiums and other amounts payable under the **Workplace Injury Rehabilitation and Compensation Act 2013** in respect of the associate judges; and S. 17AA(4)(c) amended by Nos 26/2007 s. 109, 24/2008 s. 55(2)(b). (c) payroll tax payable under the **Payroll Tax Act 2007** in respect of wages paid or payable to the associate judges; and S. 17AA(4)(d) amended by Nos 24/2008 s. 55(2)(b), 29/2015 s. 64(1)(b). (d) tax payable under the Fringe Benefits Tax Act 1986 of the Commonwealth in respect of fringe benefits provided to the associate judges; and S. 17AA(4)(e) inserted by No. 29/2015 s. 64(1)(c). (e) superannuation contributions and payments, if applicable, that are payable. S. 17AA(5) inserted by No. 83/2008 s. 9(4), repealed by No. 29/2015 s. 82(6)(b). S. 17AA(6) inserted by No. 83/2008 s. 9(4), repealed by No. 29/2015 s. 82(6)(b). S. 17AA(7) inserted by No. 83/2008 s. 9(4), amended by No. 29/2015 s. 64(2). (7) In this section (2A) ***non-salary benefits*** has the same meaning as it has in clause 3(5) and (6) of Schedule 1A to the **Public Administration Act 2004**. S. 17B (Heading) inserted by No. 23/2008 s. 13(1), amended by No. 24/2008 s. 56(1). S. 17B inserted by No. 64/1990 s. 6. 17B Pension entitlements of associate judges, their partners and children S. 17B(1) amended by No. 24/2008 s. 56(2)(a)(i). (1) An associate judge who— S. 17B(1)(a) substituted by No. 22/1995 s. 26(1). (a) has attained— (i) the age of 65 years; or S. 17B(1)(a)(ii) amended by No. 24/2008 s. 56(2)(a)(ii). (ii) in the case of an associate judge who was appointed as a master before the commencement of section 26 of the **Judicial Remuneration Tribunal Act 1995**, the age of 60 years— and has held office for at least 10 years; or S. 17B(1)(aa) inserted by No. 22/1995 s. 26(1). (aa) has held office for at least 20 years; or (b) was appointed while under the age of 60 and has become afflicted with a permanent incapacity that disables him or her from the due execution of the office— is, on resignation or retirement, entitled to a pension payable fortnightly at the annual rate of 60% of the annual salary for the time being applicable to his or her former office. Note to s. 17B(1) inserted by No. 63/2013 s. 36(1). See sections 17KA and 17KE as to pension entitlements and appointment as a reserve associate judge. S. 17B(1A) inserted by No. 22/1995 s. 26(2), amended by No. 24/2008 s. 56(2)(b). (1A) An associate judge who— S. 17B(1A)(a) amended by No. 24/2008 s. 56(2)(b)(ii). (a) had attained the age of 60 years when appointed as an associate judge; and (b) has attained the age of 70 years— is, on resignation or retirement, entitled to a pension payable fortnightly at the proportion of the rate of the pension that would have been payable if he or she had held office for 10 years that is equal to the proportion of 10 years during which he or she held office as an associate judge. S. 17B(1B) inserted by No. 22/1995 s. 26(2), amended by No. 24/2008 s. 56(2)(c)(i). (1B) An associate judge who— S. 17B(1B)(a) amended by No. 24/2008 s. 56(2)(c)(ii). (a) had attained the age of 60 years when appointed as an associate judge; and (b) has become afflicted with a permanent incapacity that disables him or her from the due execution of the office— is, on resignation or retirement, entitled to a pension payable fortnightly at the rate of the pension that would have been payable under subsection (1A) if he or she had held office until attaining the age of 70 years. S. 17B(2) amended by Nos 23/2008 s. 13(2)(a)(b), 24/2008 s. 56(2)(d). (2) On the death of an associate judge, a former associate judge or a former master his or her partner is, until death or marriage or until the partner becomes the domestic partner of another person, entitled to a pension payable fortnightly at the annual rate of 3/8ths of the annual salary for the time being applicable to the former office of the associate judge, former associate judge or the office of associate judge that is equivalent to the former office of the former master, as the case requires. S. 17B(3) amended by Nos 23/2008 s. 13(2)(a)(c), 24/2008 s. 56(2)(e). (3) A pension is not payable under subsection (2) to the partner of an associate judge, a former associate judge or former master where the marriage took place or the domestic partnership was entered into after the associate judge's or former master's resignation or retirement. S. 17B(4) amended by No. 24/2008 s. 56(2)(f). (4) On the death of an associate judge, a former associate judge or a former master in respect of whom no pension is payable under subsection (2) any eligible child of the associate judge, former associate judge or former master is entitled to a pension payable fortnightly at the annual rate set out in subsection (2) divided by 4 or the number of eligible children, whichever is the greater. S. 17B(5) amended by Nos 23/2008 s. 14, 24/2008 s. 56(2)(g). (5) An eligible child of an associate judge, a former associate judge or former master is a child, adopted child or stepchild of the associate judge, former associate judge or former master or his or her partner— (a) who is under the age of 16; or (b) who is over the age of 16 but under the age of 25 and receiving full-time education at a school, college or university. (6) A pension payable under subsection (4) shall be paid to such person or persons as the Attorney-General directs. S. 17B(7) amended by No. 24/2008 s. 56(2)(h). (7) The right of a former master or former associate judge to a pension under this section— (a) ceases if he or she accepts appointment to a judicial office in or outside Victoria; (b) is suspended while— (i) he or she holds an office or place of profit under the Crown in right of the Commonwealth or of a State; or S. 17B(7)(b)(ii) amended by No. 35/1996 s. 453(Sch. 1 item 15.6 (a)–(c)). (ii) he or she is engaged in legal practice in any State or Territory of the Commonwealth or is employed by a legal practitioner in connection with the practitioner's legal practice in any such State or Territory. S. 17B(8) amended by No. 63/2013 s. 36(2). (8) Subject to subsection (8A), subsection (7) applies unless the Governor in Council by Order otherwise determines in any particular case. S. 17B(8A) inserted by No. 63/2013 s. 36(3). (8A) Subsection (7) does not apply to a reserve associate judge. S. 17B(9) amended by No. 24/2008 s. 56(2)(i). (9) An associate judge retires for the purposes of this section only if he or she ceases to hold office in the circumstances described in section 17A(2)(d). (10) This section does not apply to or in relation to a master who resigned or retired before the commencement of section 6 of the **Courts (Amendment) Act 1990**. S. 17B(10A) inserted by No. 23/2008 s. 15. (10A) Subsections (7) to (21) of section 14 apply with such modifications as are necessary to and in respect of a pension under this section in the same circumstances and to the same extent as those subsections apply to and in respect of a pension under section 14. S. 17B(11) amended by No. 19/2001 s. 14. (11) Pensions under this section and any payments of lump sums provided by the commutation of those pensions are payable out of the Consolidated Fund which is appropriated to the necessary extent. S. 17B(12) inserted by No. 24/2008 s. 56(3). (12) For the purposes of this section, service as a master before the commencement of section 53 of the **Courts Legislation Amendment (Associate Judges) Act 2008** shall count as service as an associate judge. S. 17B(12A) inserted by No. 29/2015 s. 65. (12A) For the purposes of this section, if any associate judge was immediately prior to the associate judge's appointment the holder of a recognised service office, the person's service in the recognised service office shall count as service as an associate judge. S. 17B(12B) inserted by No. 29/2015 s. 65. (12B) Without limiting subsection (12A), if an associate judge who held a recognised service office immediately prior to the associate judge's appointment had also held another one or more recognised service offices immediately prior to, or successively prior to, that person's appointment to the last recognised service office held by that person, then that person's service in that other recognised service office or those other recognised service offices counts as service in the last recognised service office held by that person. S. 17B(12C) inserted by No. 29/2015 s. 65. (12C) For the purposes of this section— S. 17B(12C) def. of *recognised service office* amended by No. 31/2024 s. 113(Sch. 1 item 5.2). ***recognised service office*** means the following offices— (a) judge (however described) of a court of another State, the Northern Territory or the Australian Capital Territory (other than a Local Court, Magistrates' Court or equivalent court or the Federal Circuit Court of Australia); (b) Chief Magistrate where the appointment as Chief Magistrate was made on or after 6 March 2001; (c) master or associate judge (however described) of a court of another State, the Northern Territory or the Australian Capital Territory (other than a Local Court, Magistrates' Court or equivalent court or the Federal Circuit Court of Australia); (d) Solicitor-General; (e) Director of Public Prosecutions; (f) Chief Crown Prosecutor; (g) Senior Crown Prosecutor; (h) the Commissioner within the meaning of the **Independent Broad-based Anti-corruption Commission Act 2011**; (i) the Chief Integrity Inspector within the meaning of the **Integrity Oversight Victoria Act 2011**. S. 17B(13) inserted by No. 24/2008 s. 56(3). (13) In this section, ***former master*** means a master who resigned, retired or died before the commencement of section 56 of the **Courts Legislation Amendment (Associate Judges) Act 2008**. S. 17B(14) inserted by No. 16/2016 s. 194. (14) For the purposes of this section, a reference to the resignation or retirement of an associate judge includes a reference to the removal of an associate judge from office by the Governor in Council under section 87AAB of the **Constitution Act 1975** on the ground of proved incapacity if both Houses of the Parliament pray for the removal solely on the ground of proved incapacity. S. 17B(15) inserted by No. 16/2016 s. 194. (15) A removal referred to in subsection (14) is taken to be a resignation or retirement due to the associate judge having become afflicted with some permanent incapacity disabling the associate judge from the due execution of the associate judge's office. S. 17BA inserted by No. 63/2013 s. 73. 17BA Effect of part-time service arrangement on pensions of associate judges (1) If an associate judge has served under a part-time service arrangement, his or her pension under section 17B, and any pension payable in relation to the associate judge's partner or eligible children under that section, is reduced by multiplying the amount of the pension by the relevant factor determined under subsection (2) or (3). (2) Subject to subsection (3), the factor for the purposes of subsection (1) is the highest of— (a) the proportion of service that occurs during the period when the associate judge served in the office of associate judge; (b) if the associate judge is eligible for a pension under section 17B(1)(a), the proportion of service that occurs within the 10 year period immediately before the associate judge's retirement or resignation; (c) if the associate judge is eligible for a pension under section 17B(1)(aa), the proportion of service that occurs in the periods in office that— (i) involve the highest proportion of full-time duties; and (ii) cumulatively total 20 years. (3) If an associate judge continues service in office beyond the date on which he or she would qualify for a pension and a higher factor would have been calculated under subsection (2) if the associate judge's period of office had ended on a date between that date of qualification and the date the associate judge actually resigns or retires, that higher factor is the factor by which the pension must be multiplied under subsection (1). ***judicial service*** means the sum of— (a) all part-time service performed by the associate judge calculated by reference to the proportion of full time duties specified by each part-time service arrangement; and (b) all full-time service performed by the associate judge; ***proportion of service*** means the judicial service during the relevant period divided by the relevant period. Associate Judge A is appointed at the age of 55 and retires after 15 years at the age of 70. Associate Judge A serves a combination of full-time and part-time service as follows— (a) first 8 years as an associate judge is part-time service at 0∙8 of full-time service; (b) next 7 years as an associate judge is full-time service. At the time of Associate Judge A's retirement, the period that Associate Judge A served in the office of associate judge under subsection (2)(a) was 15 years and the proportion of service during that period was 13∙4 years (i.e. 8 × 0∙8 + 7). In the 10 year period immediately before Associate Judge A's retirement, the proportion of service was 9∙4 years (i.e. 3 × 0∙8 + 7). The proportion of service under subsection (2)(a) is 0∙893 (i.e. 13∙4 ÷ 15) and under subsection (2)(b) is 0∙94 (i.e. 9∙4 ÷ 10) and these are the relevant factors. Subsection (3) does not alter the relevant factor in this case. The highest proportion of service is 0∙94, which is the relevant factor. Associate Judge A will therefore receive 94∙0% of a full associate judge's pension. S. 17C (Heading) amended by No. 24/2008 s. 57(1). S. 17C