24APension entitlements of Commissioner, partner and eligible children

24A Pension entitlements of Commissioner, partner and eligible children (1) Subject to this section, the Commissioner, and the partner and children of the Commissioner, are entitled to pensions in the circumstances set out in this section and otherwise in the same circumstances and at the same rates and on the same terms and conditions as— (a) a Judge of the Supreme Court (other than the Chief Justice, the President of the Court of Appeal or a Judge of Appeal) under Part III of the **Constitution Act 1975**; and (b) the partner and children of such a Judge under Part III of the **Constitution Act 1975**. (2) Upon retirement or resignation, the Commissioner is entitled to a pension under this section if the Commissioner has attained the age of 65 years and— (a) the Commissioner has served in the office of Commissioner for not less than 5 years; or (b) having been appointed, the Commissioner is unable to serve as Commissioner for not less than 5 years, because he or she has become afflicted with a permanent incapacity disabling him or her from the due execution of that office. (3) Upon the death of the Commissioner or any person who was formerly the Commissioner and entitled to a pension under this section, the partner of the Commissioner or former Commissioner is entitled to a pension payable fortnightly at the rate of three-eighths of the salary referred to in subsection (8)(e) until— (a) the partner's death; or (b) the partner becomes the domestic partner or spouse of another person. (4) If there are eligible children of a deceased Commissioner and no pension is otherwise payable under this section to or in respect of that Commissioner, there is to be paid to any person or persons that the Attorney-General directs a pension in respect of each eligible child at the rate of pension applicable to the child under subsection (5). (5) The pension applicable to each eligible child is the amount of the pension that would be payable to the partner of the Commissioner if the partner was entitled to a pension under this section divided by 4 or the number of eligible children (whichever is the greater). (6) ***Eligible child*** in relation to a Commissioner means a child, adopted child or stepchild of the Commissioner or his or her partner— (a) who is under the age of 16 years; or (b) who— (i) has attained the age of 16 years but is under the age of 25 years; and (ii) is receiving full-time education at a school, college or university. (7) Despite subsection (3), no pension is payable to the partner of any former Commissioner if that partner became the domestic partner or spouse of the former Commissioner after that Commissioner's resignation or retirement, unless in the case of marriage, the spouse was the domestic partner of the Commissioner immediately prior to that Commissioner's resignation or retirement. (8) For the purposes of this section— (a) section 83 of the **Constitution Act 1975** is to be construed as if a reference to— (i) service in the office of a Judge of the Court for not less than 10 years is a reference to service in the office of Commissioner for not less than 5 years; and (ii) "Judge" or "Judge of the Court" were a reference to the Commissioner; and (iii) "retirement" or "resignation" includes the expiry of a term of office as Commissioner; and (b) sections 83(1)(a)(ii), (a)(iii) and (aa), (1A), (1B), (6)(aa), (a), (ab), (ac), (b) and (ba), (6A) and (7) of that Act do not apply; and (c) sections 83AA to 83AI of that Act do not apply; and (d) section 5A of the **Constitution Act 1975** (other than subsection (2A)) applies and is to be construed as if a reference to "Judge" or "Judge of the Court" in that section of that Act were a reference to the Commissioner; and (e) the annual salary on which a pension under this section is calculated is the annual salary for the time being applicable to the office of a Judge of the Supreme Court (other than the Chief Justice, the President of the Court of Appeal or a Judge of Appeal). (9) If, on the expiration of his or her term of office as Commissioner, a person who served as Commissioner for not less than 5 years is not under subsection (1) entitled to a pension only because he or she has not attained the age of 65 years— (a) on that person attaining the age of 65 years he or she, and his or her partner and children, become entitled to pensions under that subsection in the circumstances, at the rates and on the terms and conditions set out in this section as if he or she had only retired from the office of Commissioner on attaining that age; and (b) any such pension is liable to be suspended or determined in the circumstances and to the extent set out in this section. (10) A pension under this section is otherwise liable to be suspended or determined in the same circumstances and to the same extent as pensions under Part III of the **Constitution Act 1975** are liable to be suspended or determined. **Example** Accepting a judicial appointment, holding any office or place of profit under the Crown in right of the Commonwealth or of a State or engaging in legal practice: see section 83(4) of the **Constitution Act 1975**. (11) The Commissioner and his or her partner and children are not entitled to a pension under this section if— (a) the Commissioner has held office as a judge of the Supreme Court, an Associate Judge of the Supreme Court, a judge of the County Court, an associate judge of the County Court or the Chief Magistrate; and (b) that person, his or her partner or children are entitled to a pension under— (i) section 83 of the **Constitution Act 1975**; or (ii) section 104A of the **Supreme Court Act 1986**; or (iii) section 14 or 17B of the **County Court Act 1958**; or (iv) section 10A of the **Magistrates' Court Act 1989**. (12) This section is taken to have effect on and from 1 January 2013. S. 24B inserted by No. 28/2013 s. 3.