Independent Commission Against Corruption (Commissioner) Act 1994

The Act operates through a handful of core legal concepts and mechanistic rules. Those concepts, taken directly from the text, are as follows.

• Revival of judicial commission by force of the Act. Section 4 establishes revival as a statutory operation that occurs "by force of this Act" when specified conditions are met. Revival is not automatic for all Commissioners; it depends on four prerequisites: prior judicial service immediately before appointment, resignation effective immediately before the appointment, a declaration in the instrument of appointment that the commission is to revive, and written consent to the Minister (s 4(1)(a)-(d)).

• Limited scope of revival. Revival applies to the specific judicial office held immediately prior to appointment, Supreme Court or District Court, and does not affect any other judicial office that might be held by the person (s 4(2A), s 4(2B)).

• Continuity and re-appointment treatment. The Act treats a re-appointment as Commissioner without a break as a continuation of the previous appointment for the purposes of s 4 (s 4(5)). That concept preserves a continuity construct where a Commissioner who is re-appointed without interruption does not trigger the revival consequence until a genuine cessation.

• Pension and salary treatment under existing statute. Section 4(3) operates as a cross-reference into the Judges’ Pensions Act 1953 by declaring that service by the person as a Commissioner counts as service as a Judge for the purposes of that Act, that references to a Judge or judicial office include the Commissioner in that capacity, and that references to notional judicial salary in relation to the person while a Commissioner equate to the salary payable to the holder of a judicial office with equivalent status immediately before appointment as Commissioner (s 4(3)(a)-(c)).

• Exclusions to revival. Revival is expressly excluded if the person requests that exclusion in writing to the Minister or if the person is removed from office as a Commissioner by the Governor on the address of both Houses of Parliament on the ground of proved misbehaviour or incapacity (s 4(4)(a)-(b)). The removal mechanism referenced is that provided in clause 7 of Schedule 1 to the Independent Commission Against Corruption Act 1988; the Act does not restate or modify those removal procedures (s 4(4)(b)).

• Temporal limits and safeguards for transitional regulations. Section 6 enables regulations to make savings or transitional provisions consequent on commencement or amendment, but constrains their use by (a) limiting the power to two years after commencement, (b) making such regulations automatically repeal two years after commencement, (c) permitting regulations to take effect before commencement in a narrowly defined way, and (d) protecting persons from prejudicial retrospective effects where the regulation takes effect before its publication on the NSW legislation website (s 6(1)-(5)). Section 6(6) clarifies that "person" for these protections does not include the State or an authority of the State.

• Retroactive commencement specification for 2022 amendments. Section 7 specifies that the amendments made by the ICAC and LECC Legislation Amendment Act 2022 apply from 30 June 2022 even if the amending Act commences after that date, and defines "amending Act" as that specific Act (s 7(1)-(2)).

These are the legal building blocks in the Act. The Act primarily operates by tying together appointment instruments, written ministerial consent, pension statute cross-references, and regulation-making constraints, rather than creating new substantive offences, investigatory powers, or administrative procedures in this text.

The Act identifies a narrow list of directly affected persons and classes. It also creates indirect fiscal and administrative effects that flow from its cross-references. The principal categories in the text are:

• Former Judges of the Supreme Court and the District Court who are appointed as Commissioners. Section 4 targets persons who were Judges of the Supreme Court or the District Court immediately prior to appointment as a Commissioner and who resigned as a Judge with the resignation taking effect immediately before appointment (s 4(1)(a)-(b)). These persons are the primary beneficiaries of the revival mechanism and of the pension and salary treatment in s 4(3).

• The person who was Commissioner immediately before the abolition of that office in the 2016 amendments to the ICAC Act. Section 5 applies s 4 to that specific person, subject to qualifications; it expressly treats references in s 4 to the Commissioner and to appointment as inclusive of that earlier holder and their service (s 5(1)-(4)).

• The Minister (or the ministerial office) who receives written consent. The Act requires the person to have "consented by letter to the Minister to the application of this Act" as a precondition to revival (s 4(1)(d)). That creates a documentary and administrative role for the Minister’s office as the recipient of the written consent and thus as a decision node in the revival pathway.

• The Governor and both Houses of Parliament insofar as removal procedures operate. Section 4(4)(b) prevents revival in the event the person is removed from office as Commissioner by the Governor on the address of both Houses of Parliament on the ground of proved misbehaviour or incapacity. While the Act does not set out the removal procedure, it references the existing clause 7 of Schedule 1 to the Independent Commission Against Corruption Act 1988 as the operative mechanism (s 4(4)(b)).

• Persons in relation to whom regulations might provide savings or transitional treatment. Section 6 enables regulations to contain savings or transitional provisions consequent on commencement of a provision of this Act or of an amending Act (s 6(1)). Section 6(5) protects individuals or entities described as "person" from prejudicial effects of regulations that take effect before publication; section 6(6) excludes the State or an authority of the State from that definition. This means private persons and non-State entities have express non-prejudicial protection in respect of pre-publication operation of transitional regulations.

• Administrators responsible for making regulations under this Act. Although the text does not name the regulatory decision-maker, it imposes temporal and publication constraints on the regulations that those decision-makers must respect (s 6(2)-(5)).

Indirect or budgetary effects arise because s 4(3) treats service as Commissioner as service as a Judge for Judges’ Pensions Act purposes. That treatment will affect the entitlements that the pension scheme may have to pay in respect of that person’s service, and might influence employer contributions or fiscal projections, but the Act does not specify funding arrangements; the effect is a statutory reclassification for pension purposes (s 4(3)(a)-(c)).

Persons not directly named but still implicated include any person whose legal rights or liabilities might be the subject of transitional regulations under s 6. The Act defines "person" for s 6 purposes as not including the State, which narrows the protection in s 6(5) to non-State actors (s 6(6)).

The Act creates a set of rights and procedural prerequisites rather than broad positive duties. Rights, duties and procedural steps that the statute confers or requires include the following.

Rights and entitlements

• Right to revival of judicial commission upon cessation as Commissioner. Subject to the conditions in s 4(1) and the exclusions in s 4(4), the person’s commission as a Judge "revives by force of this Act" when the person ceases to hold office as a Commissioner (s 4(2)). Subsection 4(2A) specifies that the person becomes a Judge of the Supreme Court or District Court again corresponding to the office they held prior to appointment as Commissioner.

• Pension and salary-related entitlements. For the purposes of the Judges’ Pensions Act 1953, service as a Commissioner is taken to be service as a Judge, references to the Judge or judicial office include the Commissioner in that capacity, and references to notional judicial salary while a Commissioner equate to the salary of a judicial office of equivalent status immediately prior to appointment as Commissioner (s 4(3)(a)-(c)). Those provisions operate as rights in that they reclassify service for pension calculations and related statutory salary references.

Procedural prerequisites and duties

• Consent by letter to the Minister. Revival requires that the person "consented by letter to the Minister to the application of this Act" (s 4(1)(d)). That is an affirmative procedural prerequisite placed on the person. The Act does not specify the formality beyond "by letter", but the textual requirement makes the written consent a condition precedent to revival.

• Instrument of appointment declaration. The instrument by which the person is appointed as a Commissioner must "declare" that the person’s commission as a Judge is to revive by force of the Act (s 4(1)(c)). This imposes a drafting requirement on the appointment instrument and a duty on whoever prepares and executes that instrument to include the declaration.

• Resignation effective immediately before appointment. Revival requires that the person "resigned as a Judge" and that the resignation "took effect immediately before the appointment as a Commissioner took effect" (s 4(1)(b)). That is a temporal duty on the person and those managing the appointment process to coordinate effective resignation and appointment timing.

Permissive options and exclusions

• Option to elect against revival. The person may request by letter to the Minister that subsections (2) and (2A) do not apply to them, effectively allowing a person to opt out of revival (s 4(4)(a)). That is an express right to refuse the statutory revival.

• Exclusion on removal for misbehaviour or incapacity. If removed by the Governor on the address of both Houses of Parliament for proved misbehaviour or incapacity under the referenced Schedule 1, revival does not apply (s 4(4)(b)). That is a statutory disqualification for revival triggered by the existing removal procedure.

Regulatory duties and constraints

• Time limits and publication duties for regulations. The Act allows regulations to make transitional or savings provisions but places duties on the regulation maker: such regulations must not be made more than two years after commencement, they are repealed two years after commencement, and if they operate before publication they must not prejudice a person’s rights or impose retrospective liabilities (s 6(1)-(5)). These are duties to respect temporal constraints and to avoid prejudicial retrospective impacts on persons.

No new offence or penalty provisions are created in this Act. The rights and duties are largely administrative and procedural: a person must produce written consent, and the appointment instrument must carry a specific declaration, in order for revival and the cross-referenced pension treatment to apply. The Act uses the removal mechanism and the Judges’ Pensions Act to create disqualifications and entitlement effects, respectively, rather than creating new administrative sanctioning powers.

The Act contains no standalone penal sanctions, monetary fines, or new enforcement agencies. It relies on interlocking operational consequences embedded in other statutory frameworks. The enforcement and consequence mechanisms present in the text are administrative and declaratory rather than criminal.

Key enforcement-related features in the text are:

• Removal as an operative disqualifier. Section 4(4)(b) states that the revival mechanism does not apply if the person "is removed from office as a Commissioner by the Governor on the address of both Houses of Parliament (under clause 7 of Schedule 1 to the Independent Commission Against Corruption Act 1988) on the ground of proved misbehaviour or incapacity." The Act therefore ties the loss of the revival benefit to an existing removal procedure in the ICAC Act 1988. The Act itself does not prescribe how a removal proceeding is to be initiated, conducted or enforced; it references the other statute for that enforcement mechanism (s 4(4)(b)).

• No separate penalty clauses. There are no provisions in the text that create offences, fines, or civil liabilities for failing to comply with the procedural prerequisites (for example, there is no provision that makes the absence of a consent letter a criminal offence). The consequence of failing to meet the conditions in s 4(1) is effectively that the revival will not occur.

• Regulatory constraints and implied sanction of invalidity. Section 6 restricts the period within which savings or transitional regulations may be made and provides that such regulations are repealed two years after commencement. While not an enforcement provision per se, these constraints operate as a temporal limitation on the life of transitional regulation. A regulation made outside the time limit would be inconsistent with s 6(2) and therefore vulnerable to legal challenge or disallowance; the Act does not itself provide a penalty, but it sets a rule that could be enforced by judicial review or disallowance processes applicable to delegated legislation.

• Protective rules for pre-publication effect. Section 6(5) states that where a transitional provision takes effect before its publication on the NSW legislation website, it must not affect the rights of a person existing before publication in a way prejudicial to that person, and it must not impose liabilities for acts or omissions done before publication (s 6(5)(a)-(b)). The Act therefore prescribes limits that, if breached, would render the regulation inconsistent with the empowering statute and amenable to challenge. The Act does not itself create a remedial scheme; enforcement would proceed through the general channels applicable to statutory interpretation, invalidity of delegated legislation, and judicial review.

• Pension and salary consequences enforced through other statute. The Act reclassifies service for Judges’ Pensions Act purposes (s 4(3)). Any enforcement or remedial mechanism for misapplied pension entitlements will be governed by the Judges’ Pensions Act and administrative remedies for public sector pensions; those mechanisms are not set out here.

In sum, the Act uses cross-references to existing removal, pension and delegated legislation regimes to produce enforcement effects. The Act itself does not set out criminal penalties or a bespoke enforcement regime; compliance failures typically result in the absence of the statutory revival or the potential invalidity of improperly-made regulations, with the practical consequences enforced under the existing statutory and administrative frameworks referenced in the Act.

The Act is constructed as an adjunct to, and dependent on, several existing statutes and instruments. Its interactions are primarily of three kinds: interpretative cross-reference, substantive cross-application for pension and removal consequences, and temporal alignment for amendments. All such interactions are explicit in the text.

Interpretative cross-reference

• Independent Commission Against Corruption Act 1988. Section 3 provides that words and expressions used in this Act have the same meanings as in the Independent Commission Against Corruption Act 1988 (s 3). That is an express interpretative cross-reference that imports definitions and potentially operative concepts from the ICAC Act 1988 into this Act. The Act therefore relies on the ICAC Act for the meaning of defined terms used here.

Substantive cross-application and reliance

• Judges’ Pensions Act 1953. Section 4(3) expressly declares that, for the purposes of the Judges’ Pensions Act 1953, service by the person as a Commissioner is taken to be service as a Judge, references to a Judge or judicial office include references to the person in the capacity as a Commissioner and to the office of a Commissioner, and references to notional judicial salary are to be interpreted in relation to the Commissioner’s status as equivalent to their previous judicial office (s 4(3)(a)-(c)). The Act therefore alters the legal classification of service for the operation of the Judges’ Pensions Act, affecting entitlement, accrual and notional salary calculations that are administered under that separate statute.

• Removal mechanism in ICAC Act 1988. Section 4(4)(b) disapplies the revival mechanism in the event of removal under clause 7 of Schedule 1 to the ICAC Act 1988 on grounds of proved misbehaviour or incapacity. The Act therefore leans on the ICAC Act’s removal process to determine an outcome (revival disqualification) here. The substantive criteria and procedural steps for removal remain those in the ICAC Act schedule; this Act does not modify those procedures.

Delegated legislation and transitional law

• Regulations as a mechanism for savings and transition. Section 6 authorises regulations to contain savings or transitional provisions consequent on commencement of a provision of this Act or on a provision amending this Act, but places temporal and substantive constraints on that power: regulations may not be made more than two years after commencement, are repealed two years after commencement, and if they take effect before publication they must not be prejudicial to persons or impose retrospective liabilities (s 6(1)-(5)). The Act therefore delegates limited power to subordinate legislation to manage transitional matters, but circumscribes that power with time limits and non-retrospective safeguards.

Temporal relations with amending Acts

• ICAC and LECC Legislation Amendment Act 2022. Section 7 specifies that the amendments made by that amending Act apply on and from 30 June 2022, including if the amending Act commences after that date (s 7(1)-(2)). That is a temporal direction aligning the operative date of the 2022 amendments to a specified day, effectively creating a retrospective application date for the amending Act’s changes if its assent or commencement occurs later.

Interactional consequences and administrative coordination

• Appointment instruments and ministerial consent. The mechanics of revival require both the instrument of appointment to contain a declaration and the person to provide written consent to the Minister (s 4(1)(c)-(d)). The drafting and execution of appointment instruments therefore must be coordinated with ministerial communications and the timing of resignations so as to preserve eligibility for revival and the associated pension treatment. The Act assumes the continued operation of appointment and removal mechanisms under other statutes and instruments, and does not replace them.

Limitations imported from other laws

• Exclusion of the State in definition of person for s 6. Section 6(6) restricts the meaning of "person" in s 6 to exclude the State or an authority of the State. That affects how the non-prejudice safeguards in s 6(5) apply to government entities versus private persons.

Overall, the Act is structurally integrative: it imports definitions and removal mechanisms from the ICAC Act 1988, alters the operation of the Judges’ Pensions Act 1953 for particular service, authorises tightly constrained delegated legislation for transition, and fixes a retroactive commencement date for the 2022 amending Act. The practical effect for administrators will be to coordinate across those statutory frameworks when preparing appointment instruments, pension calculations, removal proceedings, or transitional regulations.

The Act’s marginal notes and inserted footers in the text indicate a small set of amendments, identified by year and schedule references in the text. The Act itself records the following amending items.

• 2016 amendments. Section 4 bears the marginal note "Am 2016 No 65, Sch 2 [1]-[5]; 2022 No 28, Sch 2[1]-[5]". Section 5 was inserted in 2016, as the text shows at its footnote: "s 5: Ins 2016 No 65, Sch 2 [6]". The substance of section 5 is a savings provision applying section 4 to the person who was Commissioner immediately before the abolition of that office resulting from the substitution of Part 2 of the Independent Commission Against Corruption Act 1988 by the Independent Commission Against Corruption Amendment Act 2016. Section 5 clarifies that s 4 applies to that person (subject to s 4(4)), and that references in s 4 to appointment, service and the office of a Commissioner include the prior office and service before abolition (s 5(1)-(4)).

• 2022 amendments. Sections 4, and the act generally, also show "2022 No 28, Sch 2 [1]-[5]" in relation to s 4. Section 6 (Regulations) and section 7 (Commencement of amendments by ICAC and LECC Legislation Amendment Act 2022) bear notes indicating insertion in 2022: "s 6: Ins 2022 No 28, Sch 2[6]" and "s 7: Ins 2022 No 28, Sch 2[6]". Those insertions added the detailed transitional/regulatory constraints at s 6, and the specific commencement application at s 7 that fixes the operative date for the 2022 amending Act as 30 June 2022 (s 7(1)).

• Nature of amendments. The amendments in 2016 appear to have been focused on the treatment of a Commissioner who held office immediately prior to structural changes to Part 2 of the ICAC Act. The 2022 insertions added detailed rules about the permissible scope and temporal limits of savings or transitional regulations consequent on commencement or amendment, and specified the commencement application date for the 2022 amending Act. The marginal notes record the schedule references where those insertions and amendments were made.

• Repeal and insertion cross-references. Section 5 refers to the abolition of the office of Commissioner as a result of substitution of Part 2 of the ICAC Act by the 2016 Amendment Act; that indicates that the 2016 package materially restructured Part 2 and removed an earlier office, which this Act then treats prospectively for the person in office at that time (s 5(1)-(4)). The text shows that s 5 was inserted by the 2016 Act to ensure transitional protection for that person.

• No other textual amendments are recorded in the Act’s body. The marginal annotations are the only amendment history recorded in the body of the text provided. There are no other inserted sections, repeals, or renumberings recorded in the supplied text.

Readers should note that the Act’s own marginal notes identify the specific schedules and items where amendments were made, allowing a user to trace the legislative instruments that altered the text. The Act’s amendments are narrowly focused on revival, savings for a particular person, temporal and publication constraints for transitional regulations, and commencement dating for the 2022 amending Act.

The text contains no reported cases, judicial interpretations, or references to litigation arising under these provisions. There are no statutory notes in the supplied text that cite decisions, and no schedules or appendices that summarise judicial rulings. Consequently, there is no litigation history recorded in the Act as supplied.

Although the text is silent on case law, it points to areas where litigation might plausibly arise, given ordinary patterns of statutory dispute. Those potential points of legal uncertainty are textual and procedural, and derive directly from the provisions. They include:

• Interpretation of the preconditions for revival. Section 4(1) requires that resignation as Judge "took effect immediately before the appointment as a Commissioner took effect," that the instrument of appointment declare revival, and that the person "consented by letter to the Minister to the application of this Act" (s 4(1)(b)-(d)). Disputes could conceivably arise about what qualifies as "immediately before" in timing terms, about the form and sufficiency of the consent letter, and about whether an instrument of appointment contains an adequate declaration. These are matters of statutory construction and administrative fact that, if contested, would be resolved through ordinary judicial review or construction principles.

• Meaning of service for Judges’ Pensions Act purposes. Section 4(3) directs that service as a Commissioner is "taken to be service as a Judge" for the Judges’ Pensions Act 1953 (s 4(3)(a)). Litigation could arise if there is disagreement about how pension accrual, notional salary, or related entitlements are calculated in practice. The Act does not itself flesh out administrative procedures for calculating the equivalence of "notional judicial salary" or how intercurrent increases or grade changes are to be treated; such disputes would be answered within the Judges’ Pensions Act framework and administrative practice.

• Application of the re-appointment/continuation rule. Section 4(5) provides that a re-appointment as Commissioner "without a break" is taken to be a continuation of the previous appointment. Disputes could arise about what constitutes "without a break" for purposes of triggering revival or pension consequences.

• Validity and scope of transitional regulations. Section 6 authorises transitional regulations subject to time limits and non-prejudicial constraints (s 6(1)-(5)). The validity of any delegated legislation that is said to be consequential on this Act but is alleged to exceed the two-year limit, or to have retroactive effect that prejudices persons, would be a candidate for judicial review or challenge as inconsistent with the empowering provision.

• Interaction with removal for proved misbehaviour or incapacity. Section 4(4)(b) disqualifies revival when removal under the ICAC Act’s Schedule 1 occurs. Litigation might arise concerning whether removal met the threshold of "proved misbehaviour or incapacity" as required by the Schedule, and whether the procedural steps were properly followed.

The Act itself does not record litigated questions. Any litigation history must be assembled from external case law databases or court reports relating to the ICAC Act, the Judges’ Pensions Act, or specific appointment or removal disputes. The supplied text does not provide such material.

The Act contains a number of technical traps and coordination issues that could create unintended outcomes if the statutory conditions are not followed precisely. The following are concrete pitfalls derived from the text.

• Timing of resignation and appointment. Revival depends on the resignation as Judge taking effect "immediately before" the appointment as Commissioner takes effect (s 4(1)(b)). If a resignation is effective at a time that does not meet the "immediately before" requirement, revival will not operate. That requires careful scheduling and legal drafting because a gap, however small, may defeat the statutory mechanism.

• Form of consent. The statute requires that the person "consented by letter to the Minister to the application of this Act" (s 4(1)(d)). The Act does not specify the required details of that letter, whether an email satisfies the requirement, or whether the Minister must acknowledge receipt. Failure to produce a properly addressed and dated letter, or to ensure it reaches the Minister before the act of appointment, risks denying revival entitlement.

• Instrument of appointment must declare revival. The appointment instrument must declare that the person’s commission as a Judge "is to revive by force of this Act" (s 4(1)(c)). Omitting that declaration from the instrument, or using different wording, may prevent revival even when other conditions are satisfied.

• Revival confined to the previous judicial office; other offices excluded. Subsection 4(2B) excludes other judicial offices from revival. A person who previously held multiple judicial roles must note that only the Supreme Court or District Court position declared in s 4(2A) is revived. If the person held concurrent judicial offices, those other offices will not be revived by s 4(2) or s 4(2A).

• Option to opt out; failure to consider the opt-out. A person can request that revival not apply by letter to the Minister (s 4(4)(a)). If a person deliberately or mistakenly sends such a letter, revival will not occur. Conversely, electing not to send such a letter means the person accepts the statutory pathway. Administrative practice must keep careful records of such written communications to avoid inadvertent loss of rights.

• Removal for misbehaviour or incapacity terminates revival prospect. If the person is removed by the Governor on the address of both Houses for proved misbehaviour or incapacity, s 4(4)(b) prevents revival. Persons and administrators should be aware that removal proceedings under Schedule 1 to the ICAC Act have this concrete consequence in addition to removal from the Commission.

• Pension equivalence complexities. The Act equates service as Commissioner to service as a Judge for Judges’ Pensions Act purposes and equates notional judicial salary to the salary "payable to the holder of a judicial office having a status equivalent to that of the judicial office held by the person immediately before being appointed as a Commissioner" (s 4(3)(c)). Implementing that equivalence may require actuarial or administrative calculations, and the Act does not supply a formula for determining "status equivalent" in nuanced cases. There may be complexity if judicial salary scales or classifications change during service.

• Re-appointment without a break treated as continuation. Under s 4(5) a re-appointment without a break is a continuation. That can have knock-on effects for timing of revival and pension accruals. Careful administrative control is required when re-appointing to ensure whether a person intends a fresh appointment or a continued term.

• Regulatory timing and pre-publication effect. Regulations that provide savings or transitional effects must be made within two years and are themselves repealed after two years (s 6(2)-(3)). While the Act permits such regulations to take effect before their publication, s 6(5) forbids prejudicial affects on persons prior to publication. That creates a compliance hazard where an administrator attempts to rely on a pre-publication transitional regulation to alter rights; such action must not prejudice persons and could be legally vulnerable if not carefully limited.

• "Person" excludes the State for s 6. The protective rule in s 6(5) does not apply to the State or a State authority because s 6(6) excludes them from the meaning of "person." Officials drafting transitional regulations must be explicit about whether government entities are to be treated differently.

• Retroactive application of the 2022 amendments date. Section 7 applies the amendments made by the ICAC and LECC Legislation Amendment Act 2022 on and from 30 June 2022, including if that amending Act commences after that date (s 7(1)). That retroactive dating can create administrative and legal complexity for acts performed between 30 June 2022 and the actual assent or commencement date, and must be tracked carefully.

These are not speculative hazards; they are direct consequences of how the Act conditions operative outcomes on precise documentary, timing and procedural steps. Administrative practice should follow the statutory wording exactly to ensure the intended legal effects.

Compliance under this Act is largely documentary and temporal. The following practical checklist translates the statutory prerequisites and constraints into operational steps for the principal actors: the person (judge moving to Commissioner), the appointing authority preparing the instrument, the Minister’s office, those administering pensions, and regulators drafting transitional regulations.

For a judge who is to be appointed as Commissioner

1. Resign with precise timing. Ensure the resignation as a Judge is drafted to take effect at a precise time that is immediately before the proposed appointment as Commissioner takes effect. The statute requires that the resignation "took effect immediately before" the appointment (s 4(1)(b)). Leave no unintended gap between effective resignation and appointment if revival is desired.

2. Provide written consent to the Minister. Prepare and deliver a clear written letter to the Minister expressly consenting "to the application of this Act" (s 4(1)(d)). Retain dated proof of delivery and receipt.

3. Consider whether to opt out. Decide whether to request that revival not apply. If so, send a separate written request to the Minister under s 4(4)(a). Ensure that this is not done inadvertently.

4. Account for pension and salary implications. Notify the pensions administrator that service as Commissioner will be treated as service as a Judge for Judges’ Pensions Act purposes (s 4(3)(a)-(c)). Secure formal administrative guidance on how "notional judicial salary" will be computed in the person’s circumstances.

For the appointing authority preparing the instrument

1. Include the revival declaration in the instrument. The appointment instrument must declare that the person’s commission as a Judge is to revive by force of the Act (s 4(1)(c)). Use the statutory wording or unambiguous equivalent.

2. Coordinate timing with the person and the Minister. Confirm the effective date of the resignation, the effective date of appointment, and that the Minister has received the required consent letter. Administrative coordination is essential to meet the "immediately before" requirement.

3. For re-appointments, track continuity. If re-appointment is intended without a break, record expressly that the appointment is continuous to avoid ambiguity under s 4(5).

For the Minister’s office

1. Maintain records of consent letters and opt-out requests. The Act conditions revival on "consent by letter to the Minister" and allows opt-out by letter. Keep a secure, dated record of any such correspondence and confirm receipt.

2. Coordinate with appointing authorities. Confirm that the appointment instrument contains the required declaration and that timing and other procedural prerequisites have been met before formalising appointment.

For pensions and payroll administrators

1. Apply Judges’ Pensions Act classification. Treat service by the person as Commissioner as service as a Judge for the purposes of the Judges’ Pensions Act 1953 as required by s 4(3)(a). Ensure payroll reflects the "notional judicial salary" equivalence cited in s 4(3)(c).

2. Seek clarification on status equivalence where necessary. If the "status equivalent" to the previous judicial office is unclear due to changes in classifications or salary scales, obtain authoritative direction or a legal opinion to apply s 4(3)(c) consistently.

For drafters of transitional regulations

1. Observe the two-year window. Make any savings or transitional regulations within two years of the relevant commencement event; any regulation made after that period will be inconsistent with s 6(2).

2. Ensure automatic sunset compliance. Bear in mind that such regulations are repealed two years after commencement (s 6(3)). Draft transitional measures that do not depend on permanence beyond that lifespan.

3. Avoid prejudicial pre-publication effects. If a regulation is to take effect before its publication on the NSW legislation website, ensure it does not prejudice the rights of persons existing before publication or impose retrospective liabilities for acts or omissions done before publication (s 6(5)). Retain contemporaneous justification for any pre-publication effect.

4. Remember the definition of "person." s 6(6) excludes the State or an authority of the State; when drafting protections or exceptions, be clear whether the subject is a private person or a State entity.

For those managing removal proceedings

1. Be aware of revival disqualification. If removing a Commissioner on the ground of proved misbehaviour or incapacity under Schedule 1 clause 7 of the ICAC Act 1988, consider that s 4(4)(b) disqualifies the person from revival. Ensure removal procedures are followed precisely to trigger that statutory effect.

Record-keeping and audit trail

• Preserve originals and copies of the resignation instrument, the appointment instrument (with the revival declaration), the consent letter to the Minister, and any opt-out request. The statute makes these documents decisive in establishing entitlement.

• Where pension conversions or notional salary calculations are required, retain actuarial or payroll computations and legal advice to justify the chosen method.

• For delegated legislation, maintain a chronology that demonstrates compliance with the two-year regulation-making limit and the non-prejudicial pre-publication protections, including internal approvals and legal vetting.

Following these steps will align operational practice with the Act’s textual requirements, reduce the risk of procedural failure, and ensure that the practical consequences for judicial revival, pension treatment, and transitional law are realised in a legally defensible manner.