This Act sets out pension and lump‑sum entitlements for New South Wales judges, certain acting and associate judges, and their spouses, de facto partners and eligible children. It specifies when benefits arise (retirement, ill‑health, death), how pensions and lump sums are calculated (service, notional/final salary; lump sums use a formula tied to the superannuation guarantee), and requires payment from the Consolidated Revenue Fund.
Ministerial and Attorney‑General decisions affect allocation, restoration and commutation of benefits (see ss 7, 12, 16B); regulations may require actuarial certification (s 18(2)).
The Judges’ Pensions Act 1953 (as set out in the material supplied) creates and regulates pension and lump sum benefits for persons who hold, or have held, certain judicial offices in New South Wales, together with dependent reversionary and children’s benefits. The Act sets eligibility rules, the quantum of pensions, the time and manner of payment, and a set of ministerial and Attorney‑General discretions that control restoration, commutation and allocation of benefits. Pensions under the Act are charged on and paid from the Consolidated Revenue Fund (s 10(1)(c); s 14(5)). The Act distinguishes between ongoing periodic pensions (Part 2) and lump sum benefits (Part 3), and it cross‑references Commonwealth superannuation law and family law superannuation rules for particular calculations and preservation requirements (s 13; s 14; s 16A).
Mechanically, the Act does the following (all citations from the text supplied):
Defines the covered offices, the relevant retirement ages and other interpretive terms (s 2; ss 2A-2D for continuity and equivalence of historic offices).
Specifies pension entitlements for judges who retire at mandatory retirement age (s 3), for judges who retire voluntarily before mandatory retirement age subject to age and service thresholds (s 4), and for judges who retire on account of ill‑health (s 5).
Creates reversionary pensions for surviving spouses and, separately, pension entitlements in respect of eligible children where a judge or surviving spouse dies (ss 6, 7A-7D).
Prohibits “dual pensions” where another State, Territory or Commonwealth law already pays in respect of prior judicial service (s 9).
Prescribes payment frequency and the funding source for pensions and lump sums (s 10; s 14(5)).
Current sections
Direct links to the current provisions in Judges’ Pensions Act 1953.
Judge means a person holding the office of Chief Justice or puisne judge of the Supreme Court of New South Wales, President of the Court of Appeal or Judge of Appeal, President or other member of the Industrial Commission of New South Wales, Judge of the Industrial Court, judicial member of the Industrial Relations Commission of New South Wales, Chief Judge or Judge of the Land and Environment Court, Chief Judge or Judge of the District Court, or Chief Judge or Judge of the Compensation Court of New South Wales.
mandatory judicial retirement age, in relation to a judge, means the maximum age at which the judge is required by law to retire.
Note—
Before the increased retirement age day, section 44 of the Judicial Officers Act 1986 provided for a maximum retirement age for judges of 72 years.
Section 44 of the Judicial Officers Act 1986 was amended on the increased retirement age day by the Justice Legislation Amendment Act (No 3) 2018 to increase the maximum retirement age for judges to 75 years. Clause 9 of Schedule 6 to the Judicial Officers Act 1986 provides that the new retirement age does not apply to judges holding office who were appointed before the increased retirement age day unless they consent to the change applying to them as required by section 55 (2) of the Constitution Act 1902. The retirement age of 72 years continues to apply to judges who do not consent to the increased retirement age applying to them.
Retired judge means a judge who has retired as referred to in section 3 (1), 4 or 5 (1).
surviving spouse of a judge, retired judge, former judge or former acting judge who has died (the deceased person) means a person who was the spouse of the deceased person at the time of the death of the deceased person.
Note—
The Interpretation Act 1987 contains definitions and other provisions that affect the interpretation and application of this Act.
(1A) For the purposes of this Act, any reference to the period for which a person has served as a judge (however expressed) is taken to exclude any time for which the person has been on leave without pay, whether before or after the commencement of this subsection.
(2) For the purposes of this Act, the notional judicial salary of a retired or deceased judge at any time is an amount equal to the salary payable at that time to the holder of a judicial office having a status equivalent to that of the judicial office held by the retired or deceased judge:
(a) immediately before his or her retirement if he or she:
(i) is living at that time, or
(ii) died after he or she retired, or
(b) immediately before his or her death if he or she died in office.
(3) Notes included in this Act do not form part of this Act.
s 2: Am 1965 No 12, sec 14 (a); 1973 No 9, Sch 2; 1974 No 106, sec 2 (a); 1979 No 205, Sch 2, Part 1; 1980 No 44, Sch 1 (1); 1984 No 93, Sch 1; 1991 No 34, Sch 3; 1992 No 34, Sch 1; 1996 No 17, Sch 5; 1998 No 42, Sch. 1 [1]; 2000 No 31, Sch 7 [2]; 2001 No 85, Sch 3 [1]; 2005 No 31, Sch 5 [2]; 2006 No 34, sec 4; 2010 No 19, Sch 3.52 [1] [2]; 2016 No 48, Sch 2.23 [1]; 2018 No 87, Sch 2.3 [1].
2A
Continuity of judicial office in the Supreme Court
2A Continuity of judicial office in the Supreme Court
2A Continuity of judicial office in the Supreme Court
Each judicial office in the Supreme Court appearing in the First Column of the Table below, as that office was constituted immediately before the commencement of the Supreme Court Act 1970, other than of Part 9 of that Act, shall, for the purposes of this Act, be identical with the office under the Supreme Court Act 1970, named in the Second Column of the Table opposite to the name of the firstmentioned office:
Table
| First Column | Second Column |
| Chief Justice. | Chief Justice. |
| President of the Court of Appeal. | President of the Court of Appeal. |
| Judge of Appeal. | Judge of Appeal. |
| Additional Judge of Appeal. | Additional Judge of Appeal. |
| Puisne judge. | Judge. |
| Acting judge. | Acting judge. |
s 2A: Ins 1970 No 52, Second Sch.
2B
Continuity of judicial office in the District Court
2B Continuity of judicial office in the District Court
2B Continuity of judicial office in the District Court
The office of Chairman of the District Court Judges and of District Court judge under the District Courts Act 1912 shall, for the purposes of this Act, be identical with the office of Chief Judge and of Judge, respectively, under the District Court Act 1973.
s 2B: Ins 1973 No 9, Sch 2.
2C
Continuity of office—Workers’ Compensation Commission
2C Continuity of office—Workers’ Compensation Commission
2C Continuity of office—Workers’ Compensation Commission
The office of Chairman of the Workers’ Compensation Commission and of member of the Workers’ Compensation Commission under the Workers’ Compensation Act 1926 (as in force immediately before the commencement of Schedule 6 (2) to the Workers’ Compensation (Amendment) Act 1984) shall, for the purposes of this Act, be identical with the office of Chief Judge and of Judge, respectively, of the Compensation Court of New South Wales under the Compensation Court Act 1984.
s 2C: Ins 1984 No 93, Sch 1.
2D
Continuity of office—Industrial Relations Commission and Industrial Court
2D Continuity of office—Industrial Relations Commission and Industrial Court
2D Continuity of office—Industrial Relations Commission and Industrial Court
(1) On and from the abolition of the offices of President of the Industrial Relations Commission (IRC President), Vice-President of the Commission (IRC Vice-President), Deputy President of the Commission (IRC Deputy President) and judicial member of the Commission (IRC judicial member):
(a) for a retired or deceased IRC President—the office of Chief Judge of the Land and Environment Court (or, if that office is abolished, a comparable judicial office) is to be treated as the judicial office of equivalent status to the office of IRC President in determining the notional judicial salary under this Act for the former IRC President, and
(b) for a retired or deceased IRC Vice-President, IRC Deputy President or IRC judicial member (except if the person was also the IRC President)—the office of puisne Judge of the Supreme Court is to be treated as the judicial office of equivalent status to any of those abolished offices in determining the notional judicial salary under this Act for a former holder of any of the abolished offices.
Note—
Part 18 of Schedule 4 to the Industrial Relations Act 1996 (as inserted by the Industrial Relations Amendment (Industrial Court) Act 2016) abolished the Industrial Court and the offices of IRC President, IRC Vice-President, IRC Deputy President and IRC judicial member. It appointed the incumbent IRC President (who was also an IRC judicial member) as a Judge of the Supreme Court and preserved the person’s final remuneration as IRC President until the remuneration of a puisne Judge of the Supreme Court exceeded that remuneration. It also provided that the IRC President’s service as an IRC judicial member was to count towards his service as a Judge of the Supreme Court for all purposes (including this Act).
(2) Subsection (1) extends to a retired or deceased former IRC President who was appointed as a Judge of the Supreme Court by Part 18 of Schedule 4 to the Industrial Relations Act 1996 if that person is entitled at the time of retirement or death to receive remuneration by reference to the person’s former office as IRC President instead of as a Judge of the Supreme Court.
(3) To avoid doubt, any notional judicial salary for a retired or deceased IRC President who was also an IRC judicial member that was determined before the abolition of those offices is taken to have been validly determined for the purposes of this Act if it was determined by reference to the salary payable to a current IRC President rather than to a current IRC judicial member.
s 2D: Ins 2016 No 48, Sch 2.23 [2].
Part 2
Pensions
Part 2 Pensions
Part 2 Pensions
pt 2, hdg: Ins 2000 No 31, Sch 7 [3].
3
Pension for certain judges who retired, or retire, at mandatory judicial retirement age
3 Pension for certain judges who retired, or retire, at mandatory judicial retirement age
3 Pension for certain judges who retired, or retire, at mandatory judicial retirement age
(1) This section applies to a retired judge who retired from his or her judicial office before, on or after the appointed day pursuant to:
(2) A retired judge to whom this section applies is entitled:
(a) where he or she retired before the appointed day—during that part of the period of his or her retirement that commenced on the appointed day, or
(b) where he or she retired on or after the appointed day—during the period of his or her retirement,
to a pension at an annual rate that, at any time during that period, is a percentage, calculated as provided by subsection (3), of his or her notional judicial salary at that time.
(3) The percentage referred to in subsection (2) is:
(a) in the case of a retired judge who retired before 14 March 1969—the sum of:
(i) twenty-five per centum, and
(ii) three and one-half per centum for each completed year of service in excess of five years (disregarding any such excess years above ten in number) that he or she served as a judge in his or her judicial office,
(b) in the case of a retired judge who retired on or after 14 March 1969, and before the appointed day—the sum of:
(i) twenty-five per centum, and
(ii) five per centum for each completed year in excess of five years (disregarding any such excess years above seven in number) that he or she so served,
(c) in the case of a retired judge who retired on or after the appointed day after serving as a judge in his or her judicial office for less than ten years:
(i) twenty-five per centum,
(ii) five per centum for each completed year in excess of five years that he or she so served, and
(iii) the percentage that bears to five per centum the same proportion as the number of days in any incomplete year that he or she so served bears to 365, or
(d) in the case of a retired judge who retired on or after the appointed day having so served for ten years or more—sixty per centum.
s 3: Am 1969 No 4, sec 2 (a); 1972 No 69, sec 3 (a). Subst 1974 No 106, sec 2 (b). Am 1979 No 205, Sch 2, Part 1; 1984 No 93, Sch 1; 1992 No 34, Sch 1; 2018 No 87, Sch 2.3 [2].
4
Pension for certain judges retiring voluntarily before mandatory judicial retirement age
4 Pension for certain judges retiring voluntarily before mandatory judicial retirement age
4 Pension for certain judges retiring voluntarily before mandatory judicial retirement age
(1) A judge appointed before the increased retirement age day who is at least 60 years of age and has served as a judge for not less than 10 years:
(a) may retire voluntarily from the judge’s judicial office, and
(b) on retiring, is entitled to the annual pension to which the judge would have been entitled if the judge had retired from the office in accordance with law at the mandatory judicial retirement age.
(2) A judge appointed on or after the increased retirement age day who is at least 65 years of age and has served as a judge for not less than 10 years:
(a) may retire voluntarily from the judge’s judicial office, and
(b) on retiring, is entitled to the annual pension to which the judge would have been entitled if the judge had retired from the office in accordance with law at the mandatory judicial retirement age.
s 4: Am 1990 No 56, Sch 1; 1992 No 34, Sch 1. Subst 2018 No 87, Sch 2.3 [3].
5
Pension for judge who retires on account of ill-health
5 Pension for judge who retires on account of ill-health
5 Pension for judge who retires on account of ill-health
(1) This section applies to a retired judge who retired from his or her judicial office before, on or after the appointed day where his or her retirement was certified by an appropriate authority to have been due to permanent disability or infirmity.
(2) Where a retired judge to whom this section applies:
(a) served as a judge in his or her judicial office for not less than five years before his or her retirement, or
(b) retires on or after the day on which Schedule 6 to the Statute Law (Miscellaneous Provisions) Act 1988 commences and, within the period of 3 months before appointment as a judge, or within the period of 3 months after that appointment, was certified by an appropriate authority not to be suffering from any impairment of health likely to affect capacity for judicial office,
he or she is entitled to the same pension as that to which he or she would have been entitled had he or she not retired when he or she did but had continued to serve as a judge in that judicial office until he or she attained the mandatory judicial retirement age and had then retired.
(3) Where a retired judge to whom this section applies retired before he or she had completed five years’ service as a judge in his or her judicial office, he or she is entitled:
(a) where he or she retired before the appointed day—during that part of the period of his or her retirement that commenced on the appointed day, or
(b) where he or she retired on or after the appointed day—during the period of his or her retirement,
to a pension at an annual rate that, at any time during that period, is twenty-five per centum of his or her notional judicial salary at that time.
(4) In this section, appropriate authority, in relation to a retirement, means:
(a) where it occurred before 30 April 1973—the Director-General of Public Health,
(b) where it occurred on or after 30 April 1973, but before the day appointed and notified under section 2 (2) of the Health Administration Act 1982—the Health Commission of New South Wales, or
(c) where it occurred on or after the day so appointed and notified under that Act—the Secretary of the Department of Health or a person authorised by the Secretary to be an appropriate authority.
(5) This section, as amended by the provisions of Schedule 1.4 [1] to the Courts Legislation Amendment Act 1996, applies to a retired judge who was appointed as a judge before the commencement of those provisions in the same way as it applies to one who was appointed after that commencement, and so applies as if subsection (2) (b) were amended by omitting the words “3 months”, where secondly occurring, and by inserting instead the words “12 months”.
s 5: Am 1972 No 63, Sch; 1972 No 69, sec 3 (b). Subst 1974 No 106, sec 2 (c). Am 1982 No 138, Sch 1; 1988 No 20, Sch 6; 1990 No 56, Sch 1; 1992 No 34, Sch 1; 1996 No 111, Sch 1.4 [1] [2]; 2018 No 87, Sch 2.3 [4].
6
Pension for surviving spouse of judge or retired judge
6 Pension for surviving spouse of judge or retired judge
6 Pension for surviving spouse of judge or retired judge
(1) Where, before, on or after the appointed day, a retired judge died or dies leaving a surviving spouse who was the judge’s spouse at the time of the judge’s retirement, or a judge died or dies in office, the surviving spouse is entitled:
(a) where the judge or retired judge died before the appointed day—during the period commencing on the appointed day and ending on the spouse’s death, or
(b) where the judge or retired judge dies on or after the appointed day—during the period commencing on the day after the judge’s or retired judge’s death and ending on the spouse’s death,
to a pension at an annual rate that, at any time during that period, is a percentage, calculated as provided by this section, of the notional judicial salary of the judge or retired judge at that time.
(1A) If a retired judge dies on or after 29 November 2002 leaving a surviving spouse who became the spouse of the retired judge after the judge retired, and the surviving spouse is an eligible spouse, the surviving spouse is entitled, during the period commencing on the day after the retired judge’s death and ending on the spouse’s death:
(a) if the retired judge and surviving spouse had been married or living in the relationship for 3 years or more immediately before the death—to a pension at an annual rate that, at any time during that period, is a percentage, calculated as provided by subsection (4), of the notional judicial salary of the retired judge at that time, or
(b) if the retired judge and surviving spouse had been married or living in the relationship for less than 3 years immediately before the death—to a pension as referred to in paragraph (a), but reduced on a pro rata basis according to the proportion that the period of the marriage or relationship bears to 3 years.
(1B) For the purposes of subsection (1A):
eligible spouse of a retired judge means a person who has or had in his or her marriage or relationship with the retired judge a child, being:
(a) a child of the spouse and the retired judge who was, in the opinion of the Minister, wholly or substantially dependent on the retired judge at any time during the marriage or relationship, or
(b) a child of the retired judge who was conceived before and born alive after the death of the retired judge.
(2) The percentage referred to in subsection (1) is twenty per centum in the case of a judge or retired judge:
(a) who died on or after 16 December 1953, and before 9 December 1964, or
(b) who died on or after 9 December 1964, and before the appointed day without having completed five years’ service as a judge in his or her judicial office.
(3) The percentage referred to in subsection (1) in the case of a judge or retired judge who died on or after 9 December 1964, and before the appointed day having completed not less than five years’ service as a judge in his or her judicial office is the sum of:
(a) twenty per centum, and
(b) one per centum for each completed year of service in excess of five years (disregarding any such excess years above ten in number) that the judge or retired judge served as a judge in his or her judicial office.
(4) The percentage referred to in subsection (1) is, in the case of a retired judge who dies on or after the appointed day:
(a) where the retired judge had, at the time of his or her retirement, served as a judge in his or her judicial office for less than ten years—twenty-five per centum, or
(b) where the retired judge had, at the time of his or her retirement, so served for ten years or more—thirty per centum.
(5) The percentage referred to in subsection (1) is, in the case of a judge who dies in office on or after the appointed day—the same percentage as would have been applicable under subsection (4) if the judge had continued to serve as a judge in his or her judicial office until he or she attained the mandatory judicial retirement age and had then retired and died.
(6) The amendment made by the Judges’ Pensions (Amendment) Act 1994 to subsection (1) extends to a person who is lawfully entitled to a pension under this section at the commencement of that Act. Accordingly, the person does not cease to be entitled to it because the person remarries afterwards.
(7) The amendment made by the Judges’ Pensions (Amendment) Act 1994 to subsection (1) does not apply to a person whose pension ceased to be payable because the person remarried before the commencement of that Act, but the person can apply for the pension to be restored under section 7.
s 6: Am 1964 No 52, sec 2 (a); 1972 No 69, sec 3 (c). Subst 1974 No 106, sec 2 (d). Am 1990 No 56, Sch 1; 1992 No 34, Sch 1; 1994 No 11, Sch 1 (1); 2002 No 110, Sch 3 [1]; 2005 No 31, Sch 5 [3]–[7]; 2018 No 87, Sch 2.3 [5].
7
Restoration of surviving spouse’s pension if lost due to remarriage
7 Restoration of surviving spouse’s pension if lost due to remarriage
7 Restoration of surviving spouse’s pension if lost due to remarriage
(1) If a person’s pension under section 6 ceased to be payable before the commencement day because the person remarried, the person may apply to the Attorney General for the pension to be restored.
(2) If the Attorney General is satisfied that:
(a) the person is in need, or
(b) the restoration of the person’s pension is otherwise justified,
the Attorney General may direct in writing that the person’s pension is to be restored.
(3) The Attorney General may direct that the person’s pension is to be restored from a day before the application day if satisfied that there are special circumstances that justify restoration of the pension from that earlier day.
(4) The Attorney General must not specify a day under subsection (3) that is before the commencement day.
(5) If the Attorney General gives a direction under subsection (2), the person’s pension is restored:
(a) from and including the day specified in the direction, or
(b) if no day is specified in the direction, from and including the application day.
(6) If the Attorney General decides not to restore a person’s pension under this section, the Attorney General must give the person written notice of that decision. The notice must include reasons for the decision.
(7) In this section:
application day means the day on which the application under subsection (1) was made.
s 7: Am 1964 No 52, sec 2 (b); 1972 No 69, sec 3 (d). Rep 1974 No 106, sec 2 (e). Ins 1994 No 11, Sch 1 (2).
7A
Pension in respect of children on death of judge or retired judge
7A Pension in respect of children on death of judge or retired judge
7A Pension in respect of children on death of judge or retired judge
(1) Subject to subsection (2), where a judge or retired judge:
(a) died before the appointed day leaving a surviving spouse who is living on the appointed day, or
(b) dies on or after the appointed day leaving a surviving spouse,
the surviving spouse is entitled, on and from the appointed day or the day following the death of the judge or retired judge, whichever is the later day, to an additional pension at the annual rate of $208 in respect of each eligible child of the surviving spouse or of the judge (other than a child of any remarriage or subsequent relationship of the surviving spouse).
(2) If a surviving spouse of a retired judge referred to in subsection (1) became the spouse of the retired judge:
(a) after retirement of the judge, and
(b) after the retired judge attained the age of 60 years (if appointed before the increased retirement age day) or 65 years (if appointed on or after that day), and
(c) less than 5 years before the judge died,
pension is not payable under subsection (1) in respect of a child of the marriage or relationship or of any other child of the surviving spouse of the retired judge.
s 7A: Ins 1974 No 106, sec 2 (f). Am 2005 No 31, Sch 5 [8]–[10]; 2018 No 87, Sch 2.3 [6].
7B
Pension in respect of children on death of surviving spouse of judge or retired judge
7B Pension in respect of children on death of surviving spouse of judge or retired judge
7B Pension in respect of children on death of surviving spouse of judge or retired judge
(1) If the surviving spouse of a judge or retired judge died before, or dies on or after, the appointed day, a pension is payable, on and from the appointed day or the day following the death of the surviving spouse, whichever is the later day, in accordance with section 7D, in respect of each eligible child of the surviving spouse or of the judge or retired judge (other than a child of any remarriage or subsequent relationship of the surviving spouse) at the annual rate of:
(a) $520, or
(b) an amount calculated in accordance with subsection (2),
whichever is the higher rate.
(2) The annual rate of pension referred to in subsection (1) (b) is, at any time, the sum of:
(a) $208, and
(b) an amount ascertained by dividing by four (or, if the number of eligible children in respect of whom pension is payable under this section is greater than four, by the number of those children) the annual amount of the pension that by virtue of section 6 would, at that time, have been payable to the surviving spouse of a judge or retired judge (being, in the case of a retired judge, a surviving spouse who was the judge’s spouse at the time of the judge’s retirement) who:
(i) had served as a judge for the same period, and in the same judicial office, as the judge or retired judge referred to in subsection (1), and
(ii) had died or, as the case may be, had retired and died at the same time or times as the judge or retired judge so referred to.
(3) Despite subsection (1), if a surviving spouse of a retired judge became the spouse of the retired judge:
(a) after retirement of the judge, and
(b) after the retired judge attained the age of 60 years (if appointed before the increased retirement age day) or 65 years (if appointed on or after that day), and
(c) less than 5 years before the judge died,
pension is not payable under subsection (1) in respect of a child of the marriage or relationship or of any other child of the surviving spouse of the retired judge.
s 7B: Ins 1974 No 106, sec 2 (f). Am 1992 No 34, Sch 1; 2005 No 31, Sch 5 [11]–[13]; 2018 No 87, Sch 2.3 [7].
7C
Pension in respect of certain children where judge or retired judge dies without leaving a surviving spouse
7C Pension in respect of certain children where judge or retired judge dies without leaving a surviving spouse
7C Pension in respect of certain children where judge or retired judge dies without leaving a surviving spouse
(1) Subject to this section, where a judge or retired judge died before, or dies on or after, the appointed day without leaving a surviving spouse, a pension shall, on and from the appointed day or the day following the death of the judge or retired judge, whichever is the later day, be paid in accordance with section 7D in respect of each eligible child of the judge or retired judge, or of a person (whether deceased or not) who was at any time the spouse (including husband or wife) or de facto partner of the judge or retired judge, at the annual rate of:
(a) $520, or
(b) an amount calculated in accordance with subsection (2),
whichever is the higher rate.
(2) The annual rate of pension referred to in subsection (1) (b) is, at any time, the sum of:
(a) $208, and
(b) an amount ascertained by dividing by four (or, if the number of eligible children in respect of whom pension is payable under this section is greater than four, by the number of those children) the annual amount of pension that by virtue of section 6 would, at that time, have been payable to the surviving spouse of a judge or retired judge (being, in the case of a retired judge, a surviving spouse who was the judge’s spouse at the time of the judge’s retirement) who:
(i) had served as a judge for the same period, and in the same judicial office, as the judge or retired judge referred to in subsection (1), and
(ii) had died or, as the case may be, had retired and died, at the same time or times as the judge or retired judge so referred to.
(3) This section does not apply in relation to:
(a) a child of a remarriage or subsequent relationship of a former spouse (including husband or wife) or de facto partner of a judge or retired judge, or
(b) a child of a spouse of a retired judge who became a spouse of the retired judge:
(i) after the retirement of the judge, and
(ii) after the retired judge attained the age of 60 years (if appointed before the increased retirement age day) or 65 years (if appointed on or after that day), and
(iii) less than 5 years before the retired judge died.
s 7C: Ins 1974 No 106, sec 2 (f). Am 1992 No 34, Sch 1; 2005 No 31, Sch 5 [14]–[17]; 2018 No 28, Sch 1.16; 2018 No 87, Sch 2.3 [8].
7D
Payment of pension in respect of children
7D Payment of pension in respect of children
7D Payment of pension in respect of children
(1) Only one pension is payable in respect of a child at any one time under section 7A, 7B or 7C. If, but for this subsection, a pension would be payable in respect of a child under 2 or more of those sections, the pension payable in respect of the child is payable in accordance with a determination made by the Minister, and not otherwise.
(2) A pension payable in respect of a child under section 7B or 7C is to be paid to the guardian of the child for the support and education of the child.
s 7D: Ins 1974 No 106, sec 2 (f). Subst 2005 No 31, Sch 5 [18].
7E
Variation of manner of payment of pension in respect of child
7E Variation of manner of payment of pension in respect of child
7E Variation of manner of payment of pension in respect of child
(1) Subject to subsections (2) and (3) but notwithstanding anything in any provision of this Act other than this section, a pension payable under this Act in respect of an eligible child shall, if the Minister so directs by order in writing:
(a) be paid to a specified person, or
(b) be expended in a specified manner.
(2) The powers conferred on the Minister by subsection (1) are not exercisable unless the Minister is satisfied, on the recommendation of the Chief Justice:
(a) in the case of a direction referred to in subsection (1) (a)—that the support and education of the child would be best assured by giving that direction, or
(b) in the case of a direction referred to in subsection (1) (b)—that by reason of special circumstances it is desirable in the interests of the child to give the direction.
(3) The powers conferred on the Minister by subsection (1) are not exercisable in the case of a pension payable to a surviving spouse of a judge or retired judge unless the child in respect of whom the pension is payable is not living with the spouse.
s 7E: Ins 1974 No 106, sec 2 (f). Am 2005 No 31, Sch 5 [19].
8
Prior judicial service
8 Prior judicial service
8 Prior judicial service
(1) In this section:
prior judicial service, in relation to a judge or retired judge, means:
(a) service as a judge within the meaning of this Act, or
(b) service in an office in a State, the Commonwealth or a Territory the holder of which may qualify for a pension or retiring allowance under a law of the State, Commonwealth or Territory relating to pensions or retiring allowances payable to retiring judges, or
(c) service as chairman, acting chairman or additional temporary chairman of the Crown Employees Appeal Board,
being a period of service before his or her appointment as a judge (or, if appointed as a judge on more than 1 previous occasion, before his or her last such appointment).
(2) Any prior judicial service by a judge shall be computed as portion of his or her service as a judge in the judicial office which he or she held immediately before his or her retirement or his or her death before retirement, as the case may be.
(3) Any period during which a judge has served as an additional Judge of Appeal, an acting judge of the Supreme Court of New South Wales, an acting member of the Industrial Commission of New South Wales, an Acting Judge of the Industrial Court, an acting judicial member of the Industrial Relations Commission of New South Wales, an acting Judge of the Land and Environment Court (under the Land and Environment Court Act 1979), an acting judge of a District Court (under the District Courts Act 1912), or an acting Judge of the District Court (under the District Court Act 1973), or an acting member of the Workers’ Compensation Commission (under the Workers’ Compensation Act 1926 as in force immediately before the commencement of Schedule 6 (2) to the Workers’ Compensation (Amendment) Act 1984) or an acting Judge of the Compensation Court of New South Wales (under the Compensation Court Act 1984) shall be deemed to be prior judicial service by the judge for the purposes of this section.
s 8: Am 1964 No 52, sec 2 (c); 1965 No 12, sec 14 (b); 1972 No 69, sec 3 (e); 1973 No 9, Sch 2; 1979 No 205, Sch 2, Part 1; 1980 No 44, Sch 1 (2); 1984 No 93, Sch 1; 1991 No 34, Sch 3; 1991 No 94, Sch 1; 1992 No 34, Sch 1; 1996 No 17, Sch 5.
9
Dual pensions
9 Dual pensions
9 Dual pensions
(1) A person is not entitled to receive a pension under this Act if the person is receiving a pension under a law of the Commonwealth, or of another State or of a Territory, which provides for the payment of a pension to a person by reason of the person having held an office referred to in section 8 (1) (b).
(2) A person is not entitled to receive a pension under this Act in respect of a child if a pension is being paid in respect of the child under a law of the Commonwealth or of another State or of a Territory which makes provision for the payment of a pension in respect of a child of the holder of an office referred to in section 8 (1) (b) or the surviving spouse of such an office holder.
s 9: Subst 1972 No 69, sec 3 (f). Am 1974 No 106, sec 2 (g); 1991 No 94, Sch 1; 2005 No 31, Sch 5 [20].
10
Payment of pensions
10 Payment of pensions
10 Payment of pensions
(1) All pensions payable under or by virtue of this Act:
(a) shall accrue from day to day,
(b) shall be payable fortnightly,
(c) shall be charged upon and payable out of the Consolidated Revenue Fund.
(2) A lump sum payable under section 12 is charged on and payable out of the Consolidated Fund.
s 10: Am 1998 No 42, Sch 1 [2]; 2006 No 23, Sch 5 [1].
10A
Reduction in pensions where lump sum benefit paid
10A Reduction in pensions where lump sum benefit paid
10A Reduction in pensions where lump sum benefit paid
(1) Despite any other provision of this Act, if a pension is payable under this Act to or in respect of a judge or former judge who has previously been paid a lump sum benefit:
(a) under this Act, or
(b) under an Act of another State, a Territory or the Commonwealth in respect of any prior judicial service,
the amount of any pension payable from time to time under this Act is to be reduced having regard to the value of the lump sum benefit paid.
(2) If a pension is reduced under this section, any subsequent reversionary pension payable from time to time under this Act is to be reduced.
(3) The amount of the reduced pension or reversionary pension is to be determined by the Attorney-General in accordance with actuarial advice.
(4) In this section:
prior judicial service has the same meaning as it has in section 8.
reversionary pension means a pension paid under this Act to a person as a result of a pension being previously paid to another person under this Act (for example, a pension paid to a surviving spouse of a judge).
s 10A: Ins 2000 No 31, Sch 7 [4]. Am 2005 No 31, Sch 5 [21].
11
11
11, 11A
(Renumbered as secs 16, 17)
s 11: Renumbered as secs 16, 17, 2000 No 31, Sch 7 [7].
s 11A: Renumbered as secs 16, 17, 2000 No 31, Sch 7 [7].
11B
Provision consequent on enactment of Courts Legislation Amendment Act 2001
11B Provision consequent on enactment of Courts Legislation Amendment Act 2001
The Chief Judge of the Land and Environment Court is taken from 1 September 1980 to have been a Judge for the purposes of this Act.
s 11B: Ins 2001 No 85, Sch 3 [2].
12
Commutation of pensions for payment of superannuation contributions surcharge
12 Commutation of pensions for payment of superannuation contributions surcharge
12 Commutation of pensions for payment of superannuation contributions surcharge
(1) A retired judge who is entitled to a pension under this Act may elect to have part of the pension commuted to a lump sum for the purposes of payment of a liability for superannuation contributions surcharge arising because of that entitlement.
(2) A person (other than a retired judge) who is entitled to a pension under this Act may elect to have part of the pension commuted to a lump sum for the purposes of payment of a liability for superannuation contributions surcharge arising in relation to:
(a) a judge who has died, or
(b) a retired judge who died without making an election under subsection (1) and before the period applicable to the retired judge for making such an election ended.
(3) An election:
(a) may relate to the whole or part of an outstanding liability for superannuation contributions surcharge, and
(b) must be made in writing to the Minister not later than 2 months after the liability to pay the amount of the superannuation contributions surcharge arises, or within such further period as the Minister may allow.
(4) If an election is made by a retired judge, the Minister is to cause the amount of the lump sum to be paid to the retired judge.
(5) If an election is made by a person other than a retired judge, the Minister may cause the amount of the lump sum to be paid to the person, but only if satisfied that the lump sum is to be applied towards payment of the superannuation contributions surcharge.
(6) On payment of a lump sum, the pension otherwise payable from time to time under this Act to the person is to be reduced.
(7) The amount of the reduced pension is to be calculated in accordance with the regulations.
(8) A pension may be commuted only to the extent necessary to meet the liability for superannuation contributions surcharge.
(9) The Minister may, by signed instrument, delegate to a person prescribed by the regulations any of the Minister’s functions under subsection (3) or (4).
s 12: Rep 1974 No 106, sec 2 (j). Ins 1998 No 42, Sch 1 [3].
12A
Reduction of reversionary pensions
12A Reduction of reversionary pensions
12A Reduction of reversionary pensions
(1) If part of a pension is commuted under section 12, any subsequent reversionary pension payable from time to time under this Act is to be reduced.
(2) The amount of the reduced reversionary pension is to be calculated in accordance with the regulations.
(3) In this section:
reversionary pension means a pension paid under this Act to a person as a result of a pension being previously paid to another person under this Act (for example, a pension paid to a surviving spouse of a retired judge).
s 12A: Ins 1998 No 42, Sch 1 [3]. Am 2005 No 31, Sch 5 [21].
12B
12B
12B
(Renumbered as sec 18)
s 12B: Renumbered as sec 18, 2000 No 31, Sch 7 [8].
Part 3
Lump sum benefits
Part 3 Lump sum benefits
Part 3 Lump sum benefits
pt 3: Ins 2000 No 31, Sch 7 [5].
13
Calculation of lump sum benefits
13 Calculation of lump sum benefits
13 Calculation of lump sum benefits
(1) The lump sum benefit payable under this Act to or in respect of a judge or acting judge qualified under section 15 is an amount calculated as follows:
where:
B represents the amount to be ascertained.
S represents the superannuation guarantee.
F represents the final salary of the judge or acting judge.
Y represents the years of service calculated on a daily basis, commencing on or after the appointed day.
(1A) More than one calculation is required under subsection (1) if the superannuation guarantee level changes during the years of service of a judge or acting judge. In such a case, separate calculations are to be made in respect of each such level with Y being limited to the years of service (calculated on a daily basis) of the judge or acting judge during the period when the superannuation guarantee is at that particular level.
(2) In this section:
attributed salary of a judge or acting judge at any time means:
(a) if the judge or acting judge is employed on a full-time basis—the salary of the judge or acting judge at that time, or
(b) if the judge or acting judge is employed on a part-time basis—the salary that would be payable to the judge or acting judge at that time if employed on a full-time basis.
final salary of a judge or acting judge means the rate of attributed salary paid or payable to the judge or acting judge on the exit date of the judge or acting judge.
s 13: Am 1970 No 52, Second Sch; 1973 No 9, Sch 2; 1980 No 44, Sch 1 (3); 1987 No 70, Sch 5. Rep 1999 No 85, Sch 4. Ins 2000 No 31, Sch 7 [5]. Am 2014 No 14, Sch 3.2 [1]–[4].
14
When lump sum benefit is payable
14 When lump sum benefit is payable
14 When lump sum benefit is payable
(1) A lump sum benefit calculated in accordance with section 13 is payable to or in respect of a judge or acting judge qualified under section 15:
(a) if the judge or acting judge dies, or
(b) if the judge or acting judge ceases to be employed as a judge or acting judge in the circumstances in which a benefit is payable for the purposes of complying with a relevant Commonwealth superannuation standard, or
(c) in any other circumstances in which a benefit is payable to comply with any such standard or may be paid in respect of a member of a regulated superannuation fund under any such standard,
and is so payable in accordance with subsections (4) and (5).
(2) If the whole or part of a lump sum benefit payable to a former judge or former acting judge would be required to be preserved if a relevant Commonwealth superannuation standard applied to the benefit, that amount must, on the election of the former judge or former acting judge, be paid to:
(a) a regulated superannuation fund, or
(b) an approved deposit fund, or
(c) an RSA institution.
(3) If the former judge or former acting judge does not make an election referred to in subsection (2), the amount is to be paid on behalf of the former judge or former acting judge to a regulated superannuation fund or approved deposit fund approved by the Attorney General.
(4) The lump sum benefit in respect of a former judge or former acting judge is payable:
(a) unless the former judge or former acting judge has died—to the former judge or former acting judge, or
(b) if the former judge or former acting judge has died and is survived by a surviving spouse—to the surviving spouse, or
(c) if the former judge or former acting judge has died and is not survived by a surviving spouse—to the legal personal representatives of the former judge or former acting judge for payment in respect of any eligible children of the former judge or former acting judge, or
(d) if the former judge or former acting judge has died and is not survived by a surviving spouse or any eligible children—to the legal personal representatives of the former judge or former acting judge.
(5) A lump sum payable under this section is charged on and payable out of the Consolidated Fund.
(6) For the purposes of this section, an acting judge whose term of appointment as an acting judge ends, and who is appointed for a further consecutive term as an acting judge, is taken not to have ceased to be employed as an acting judge.
relevant Commonwealth superannuation standard means a standard that would be applicable if a benefit were payable from a regulated superannuation fund.
s 14: Ins 2000 No 31, Sch 7 [5]. Am 2005 No 31, Sch 5 [22].
15
Judges and acting judges who are qualified for lump sum benefits
15 Judges and acting judges who are qualified for lump sum benefits
15 Judges and acting judges who are qualified for lump sum benefits
(1) A judge or acting judge is qualified for payment of a lump sum benefit payable under this Act if the judge or acting judge is not a person referred to in subsection (2).
(2) A lump sum benefit is not payable to or in respect of the following persons:
(a) a judge who is entitled to payment of a pension under this Act on ceasing to be a judge or in respect of whom such a pension is payable if the judge dies,
(b) an acting judge who ceases to be an acting judge because of appointment as a judge.
s 15: Ins 2000 No 31, Sch 7 [5].
Part 4
Miscellaneous
Part 4 Miscellaneous
Part 4 Miscellaneous
pt 4, hdg: Ins 2000 No 31, Sch 7 [6].
16
Payment of pension to legal personal representative in certain cases
16 Payment of pension to legal personal representative in certain cases
16 Payment of pension to legal personal representative in certain cases
If a judge or former judge dies and the Minister is of the opinion that proceedings might be instituted under Chapter 3 of the Succession Act 2006 in relation to the estate, or notional estate, of the deceased, the Minister may, despite any other provision of this Act, pay to the personal representatives of the deceased any benefit that, but for this section, would have to be paid to some other person.
s 16 (previously s 11): Am. 1964 No 52, sec 2 (d); 1969 No 4, sec 2 (b). Rep 1974 No 106, sec 2 (h). Ins 1999 No 4, Sch 2.15. Renumbered 2000 No 31, Sch 7 [7]. Am 2008 No 75, Sch 2.5.
16A
Accrued benefit multiples for family law superannuation purposes
16A Accrued benefit multiples for family law superannuation purposes
16A Accrued benefit multiples for family law superannuation purposes
(1) For the purposes of the family law superannuation legislation, the accrued benefit multiple of a judge or retired judge is the period (in years and parts of years) that the judge or retired judge served as a judge in his or her judicial office.
Competing claims by surviving spouses for pensions and benefits
16B Competing claims by surviving spouses for pensions and benefits
16B Competing claims by surviving spouses for pensions and benefits
(1) This section applies to the following pensions or lump sum benefits payable under this Act:
(a) a pension payable to the surviving spouse of a deceased judge or retired judge under section 6,
(b) a lump sum benefit payable to the surviving spouse of a deceased former judge or former acting judge under section 14.
(2) If a pension or lump sum benefit to which this section applies would be payable to more than 1 person because a judge, retired judge, former judge or former acting judge (the deceased person) has died leaving more than 1 surviving spouse:
(a) the pension or lump sum benefit is payable in accordance with a determination made by the Minister, and not otherwise, and
(b) the total amount of pension or lump sum benefit payable to those persons at any time is not to exceed the amount that would be payable if there were only 1 spouse.
(3) For the purposes of subsection (2) (a), the Minister may determine in relation to a pension or lump sum benefit to which this section applies:
(a) that the pension or lump sum benefit is not payable to such of the persons concerned as the Minister specifies, or
(b) that the amount of the pension or lump sum benefit is to be apportioned between the persons concerned in such manner as the Minister specifies.
(4) The payment of any pension or lump sum benefit to which this section applies is to be withheld, if the Minister so directs:
(a) until 30 days after the death of the person as a consequence of which the pension or lump sum benefit is payable, or
(b) if an application has been made for the pension or lump sum benefit by more than 1 person purporting to be the spouse of a deceased person, until the Minister is satisfied as to the 1 person to whom the pension or lump sum benefit is payable or until a determination is made in relation to the matter by the Minister.
(5) If, after 30 days from the death of a person, a pension or lump sum benefit to which this section applies is paid in respect of any period to the spouse of the deceased person, a pension or lump sum benefit to which this section applies is not payable to any other spouse of the deceased person in respect of that period, unless the Minister has made a determination to apportion the pension or lump sum benefit under subsection (3) (b).
(6) If, after 30 days from the death of a person, part of a pension is commuted by a surviving spouse under section 12, so much of the pension as is equal to the amount of the pension so commuted is not payable to any other spouse of the deceased person.
(7) For the purposes of subsections (5) and (6), an amount paid in good faith to a person purporting to be the spouse of a deceased person is taken to have been paid to such a spouse.
(8) If, after 30 days from the death of a person, any amount is paid under this Act to the person’s personal representatives or to such other persons as the Minister may determine, any pension or lump sum benefit to which this section applies payable to the spouse of the deceased person is to be reduced by the amount so paid.
s 16B: Ins 2005 No 31, Sch 5 [23].
17
Application of Act to and in respect of associate Judges
17 Application of Act to and in respect of associate Judges
17 Application of Act to and in respect of associate Judges
(1) This section applies to and in respect of:
(a) the person who held the office of Master in Equity constituted under the Equity Act 1901 before its repeal and was appointed to the office of master by section 14 (1) of the Supreme Court Act 1970, and
(2) This Act applies to and in respect of a person referred to in subsection (1) in the same way as it applies to and in respect of a judge and a retired judge and it so applies as if:
(a) a reference to a judge included a reference to a person referred to in subsection (1),
(b) a reference to a retired judge included a reference to a person referred to in subsection (1) who has retired pursuant to section 115 (2) of the Supreme Court Act 1970,
(c) an office referred to in subsection (1) were a judicial office, and
(d) a reference in section 8 to prior judicial service includes a reference to the following:
(i) service in the offices of Master in Equity and Acting Master in Equity constituted under the Equity Act 1901 before its repeal,
(ii) service in the office of master or acting master of the Supreme Court under section 111 of the Supreme Court Act 1970 before the abolition of the offices of master and acting master of the Supreme Court by the Courts Legislation Amendment Act 2005,
(iii) service in the office of acting associate Judge of the Supreme Court under section 111 (2) of the Supreme Court Act 1970.
s 17 (previously s 11A): Ins 1972 No 69, sec 3 (g). Subst 1974 No 106, sec 2 (i). Am 1991 No 94, Sch 1. Renumbered 2000 No 31, Sch 7 [7]. Am 2005 No 31, Sch 5 [24] [25].
18
Regulations
18 Regulations
18 Regulations
(1) The Governor may make regulations, not inconsistent with this Act, for or with respect to any matter that by this Act is required or permitted to be prescribed or that is necessary or convenient to be prescribed for carrying out or giving effect to this Act.
(2) A regulation may be made for the purposes of section 12 (7) or 12A (2) only if the Minister has certified in writing that actuarial advice was obtained in relation to the subject-matter of the regulation.
s 18 (previously s 12B): Ins 1998 No 42, Sch 1 [3]. Renumbered 2000 No 31, Sch 7 [8].
19
Savings and transitional provisions
19 Savings and transitional provisions
19 Savings and transitional provisions
Schedule 1 has effect.
s 19: Ins 2000 No 31, Sch 7 [9].
Schedule 1
Savings and transitional provisions
Schedule 1 Savings and transitional provisions
Schedule 1 Savings and transitional provisions
(Section 19)
sch 1: Ins 2000 No 31, Sch 7 [10]. Am 2002 No 110, Sch 3 [2] [3]; 2005 No 31, Sch 5 [26] [27]; 2005 No 98, Sch 2.32; 2006 No 23, Sch 5 [2]; 2014 No 14, Sch 3.2 [5]; 2018 No 87, Sch 2.3 [9].
Source text: opening excerpt
Sourced from legislation.nsw.gov.au, CC BY 4.0.
Part 1 Preliminary
Part 1 Preliminary
Part 1 Preliminary
pt 1, hdg: Ins 2000 No 31, Sch 7 [1].
1 Name of Act and commencement
1 Name of Act and commencement
1 Name of Act and commencement
(1) This Act may be cited as the Judges’ Pensions Act 1953.
(2) This Act shall commence on the first day of January, one thousand nine hundred and fifty-four.
2 Definitions
2 Definitions
2 Definitions
(1) In this Act, unless the context or subject matter otherwise indicates or requires:
Acting judge means:
(a) an Acting Judge of the Supreme Court of New South Wales, or
(b) an acting member of the Industrial Relations Commission of New South Wales, or
(c) an Acting Judge of the Industrial Court, or
(d) an acting judicial member of the Industrial Relations Commission of New South Wales, or
(e) an acting Judge of the Land and Environment Court (under the Land and Environment Court Act 1979), or
(f) an Acting Judge of a District Court (under the District Court Act 1973), or
(g) an acting Judge of the Compensation Court (under the Compensation Court Act 1984).
Appointed day means the day on which the Judges’ Pensions (Amendment) Act 1974 commenced.
Child includes adopted child.
de facto partner of a person means a person who is in a de facto relationship with the other person.
Note—
“De facto relationship” is defined in section 21C of the Interpretation Act 1987.
Eligible child means:
(a) a child under the age of sixteen years, or
(b) a child who:
(i) has attained the age of sixteen years but is under the age of twenty-five years, and
Provides a statutory mechanism to commute part of a pension to a lump sum to meet superannuation contributions surcharge liabilities, with time limits and regulation‑making back‑up (s 12; s 12A; s 18(2)).
Introduces a lump sum benefit scheme for judges and acting judges qualified under s 15, with a calculation linked to the “superannuation guarantee”, a final salary concept and years of service (ss 13-15).
Confers powers on the Minister and Attorney‑General to determine competing claims, restore pensions lost by remarriage, direct payment manners for children’s pensions, and apply withholdings while eligibility disputes are resolved (ss 7; 7E; 12; 16; 16B).
Enables regulations for necessary operational detail, with an actuarial certification requirement for rules connected to commutation and reversionary reductions (s 18(2)).
The Act contains transitional and savings provisions in Schedule 1 (for example, treatment of past service from 1 July 1992, and the de facto partner eligibility date) and notes numerous historical amendments and insertions (s 2 and Schedule 1). The text supplied shows the Act has been incrementally modernised, including additions of lump sum provisions (Part 3 inserted, see note to pt 3), extensions to recognise de facto partners (Schedule 1 cl 4), and adjustments linked to changes in mandatory retirement ages (definitions in s 2 and Schedule 1 cl 5).
The immediate operational effects are:
Judges who meet service and age thresholds acquire an entitlement to ongoing pension payments, calculated as percentages of a notional judicial salary (ss 3, 6).
Acting judges are eligible to qualify for lump sum benefits subject to exclusions (s 13; s 15).
Ministers, the Attorney‑General and the Chief Justice have specified roles and gates for discretionary directions, restoration and withholding (ss 7; 12(9); 7E(2); 16; 16B).
The Act thus sets a state‑funded, statutory retirement and survivor safety net for a defined, concentrated class of public office holders, and delegates multiple administrative determinations to executive officers and to actuarial advice.
Main concepts
The Act operates through a small set of core legal and financial concepts. Each concept is defined or operationalised in the text, and governance of the concept is allocated to identified actors.
Judicial status and continuity. “Judge” and “acting judge” are defined expansively to include holders of historic and contemporary judicial offices across the Supreme Court, Court of Appeal, Land and Environment Court, District Court, Industrial Court/Industrial Relations Commission, Compensation Court and associated acting offices (s 2; ss 2A-2D). The continuity provisions (ss 2A-2D) specify how predecessor office titles map to current offices for pension purposes, which matters for determining notional salary and service periods.
Notional judicial salary. The “notional judicial salary” for a retired or deceased judge is the salary payable at the relevant time to an office of equivalent status, either immediately before retirement or immediately before death in office (s 2(2)). This establishes the base against which percentage pensions are calculated.
Service and exclusion of unpaid leave. Service for pension purposes excludes time on leave without pay (s 2(1A)). “Prior judicial service” includes certain pre‑appointment judicial roles and is treated as part of a judge’s service for entitlement calculations (s 8).
Pension quantum rules. For judges retiring at mandatory retirement age, s 3 prescribes percentage pension rates based on service bands (25 percent base plus increments per completed year above five, varying by pre/post‑1969 and post‑appointed day rules; a 60 percent cap for ten years or more post‑appointed day). For surviving spouses, s 6 sets the percentages by reference to service length and temporal cut‑offs; s 6(1A) and (1B) create special rules for spouses who married after retirement subject to dependency and duration tests.
Retirement pathways. The Act recognises voluntary retirement before mandatory age under conditions (s 4). It treats retirement for ill‑health with a protective rule equating the pension to that which would have been payable had the judge remained in office until mandatory retirement age, provided specified certification and service conditions are met (s 5).
Reversionary and children’s benefits. Surviving spouses and eligible children are entitled to pensions in prescribed amounts or as percentages of the deceased judge’s notional salary (ss 6; 7A-7D). The Act limits double counting, provides ministerial allocation where multiple overlapping entitlements exist, directs that children’s pensions are generally paid to guardians, and permits the Minister to alter the manner of payment in exceptional circumstances, on the Chief Justice’s recommendation (ss 7D; 7E).
Lump sum benefit architecture. Part 3 introduces lump sum benefits for judges and acting judges who are “qualified” (ss 13-15). The calculation is expressed in terms of the superannuation guarantee rate (S), final salary (F), and years of service (Y). The Act anticipates changes in the superannuation guarantee by requiring multiple calculations if S changes during service (s 13(1A)). Lump sums can be preserved or directed to regulated superannuation vehicles in order to comply with Commonwealth superannuation standards (s 14(2)-(3)).
Commutation for surcharge. The Act permits commutation of part of a pension into a lump sum to meet liabilities under the Commonwealth superannuation contributions surcharge framework, subject to election time limits, regulation guidance and ministerial delegation (s 12).
Funding and payment mechanics. Pensions accrue daily, are paid fortnightly, and are charged on the Consolidated Revenue Fund (s 10(1)(a)-(c)). Lump sum payments are likewise charged to Consolidated Fund when payable under s 14(5) and s 10(2).
Administrative discretion and actuarial input. The Minister and Attorney‑General have defined powers: the Attorney‑General decides restoration of pensions lost by remarriage (s 7), and determines reductions for prior lump sum payments having regard to actuarial advice (s 10A(3)). Regulations affecting commutation calculations or reversionary reductions require written certification that actuarial advice has been obtained (s 18(2)).
These concepts interact: for example, the notional salary base (s 2(2)) multiplied by percentages (ss 3, 6) gives the periodic pension, while a judge who is not pension‑eligible under s 15 may instead be eligible for a lump sum under Part 3. The Act deliberately cross‑links to Commonwealth regimes when preservation or superannuation standards are engaged (s 13; s 14).
Who it affects
The Act targets a concentrated set of recipients and those who administer their estates and pensions.
Primary beneficiaries
Current and former judges. The core class is defined by s 2; it includes Chief Justice, puisne judges of the Supreme Court, Court of Appeal judges, Land and Environment Court judges, District Court judges, industrial court and commission judicial officers and previously constituted offices mapped by the continuity provisions in ss 2A-2D. Judges appointed before and after specific reform dates are treated differently where the Act’s thresholds and age conditions distinguish cohorts (for example, see s 4 and the definition of “increased retirement age day” in s 2).
Acting judges and certain historic office holders. Acting judges are specifically included for certain benefits; Part 3 provides lump sum entitlements for “judges or acting judges” qualified under s 15. Section 15 excludes a judge who is entitled to pension from receiving a lump sum upon ceasing to be a judge; it also excludes an acting judge who ceases an acting appointment because of appointment as a judge (s 15(2)(a)-(b)).
Secondary beneficiaries and dependants
Surviving spouses and de facto partners. The Act treats “spouse” to include de facto partners; however temporal cut‑offs apply via Schedule 1 cl 4 which fixes a de facto partner eligibility date (1 May 2005) and provides transitional application (Schedule 1 cl 4(1)-(3)). Surviving spouses are entitled to reversionary pensions under s 6, with special provisions for spouses who married after retirement under s 6(1A)-(1B).
Eligible children. The Act provides pensions in respect of “eligible children”, defined in s 2, including adopted children and students up to age 25 if in full‑time education. Children’s pensions may be paid to guardians (s 7D(2)) and the Minister may direct alternative arrangements on Chief Justice recommendation (s 7E).
Administrative and executive actors
The Minister. The Minister administers pension payments, may make determinations about competing child pensions (s 7D(1)), may be the recipient of written commutation elections (s 12(3)-(4)), and exercises discretion under s 16B concerning competing spouse claims including withholding payments for up to 30 days or until satisfied about the correct recipient (s 16B(2)-(5)).
The Attorney‑General. The Attorney‑General decides restoration of pensions lost by remarriage (s 7), and is tasked with determining reduced amounts of pensions when prior lump sums have been paid, subject to actuarial advice under s 10A(3) where that section applies. The Attorney‑General may also be the default recipient for lump sums where a former judge does not make an election to have preserved amounts paid to an approved fund (s 14(3)).
The Chief Justice. The Chief Justice’s recommendation is a precondition for a Ministerial direction to vary the manner of payment of a child’s pension under s 7E(2).
Fiscal actors
The Consolidated Revenue Fund. All periodic pensions and certain lump sums are expressly charged on and payable from the Consolidated Revenue Fund (s 10(1)(c); s 14(5)). That means the state budget bears the liability and the Treasury and relevant departmental budget processes must provide for periodic and contingent payments.
Other legal actors and regimes
Superannuation administrators and trustees. Where a lump sum must be preserved under Commonwealth standards, the former judge may elect to have an amount paid to a regulated superannuation fund, an approved deposit fund or an RSA institution, or the Attorney‑General may direct payment to a fund approved by the Attorney‑General (s 14(2)-(3)).
Family law practitioners. For family law superannuation splitting, accrued benefit multiples for judges are specified by s 16A as the period of judicial service in years, which interacts with Commonwealth family law superannuation rules.
Who pays, who decides and who is excluded
Who pays. The State pays, via Consolidated Revenue (s 10(1)(c); s 14(5)). This shifts the long‑term liability to public finances.
Who decides. Decisions are distributed. The Attorney‑General exercises restorative and actuarial reduction decisions (ss 7; 10A(3)); the Minister administers payments, discretions about allocation where multiple claimants exist, and can withhold payments pending resolution (ss 12; 16B); the Chief Justice is a gatekeeper for child payment variations (s 7E(2)); actuarial advisers and regulations underpin numerical reductions and commutation calculations (s 10A(3); s 18(2)).
Who is excluded. Persons receiving a pension under another jurisdictional law in respect of pre‑appointment service are excluded from receiving an overlapping pension under this Act (s 9). A judge who is already entitled to a pension under this Act on ceasing to be a judge, or in respect of whom such a pension is payable upon death, is excluded from receiving a lump sum under Part 3 (s 15(2)(a)).
Concentrated benefit incidence and visibility
Benefits are concentrated on a narrow public servant population: judges, their spouses, their eligible children and, in specified circumstances, acting judges. The Act therefore formalises state pension costs that are materially concentrated rather than broadly diffused.
Key duties and rights
The Act creates explicit rights to pensions and lump sums, and recites duties upon administrative officers for payment, decision and regulation. The following sets out the main entitlements and the administrative obligations that give them effect.
Rights and entitlements of recipients
Right to a periodic pension on retirement at mandatory age. A judge who retired having served not less than five years is entitled to a pension at an annual rate expressed as a percentage of notional judicial salary. The percentage varies by the judge’s date of retirement and length of service (s 3(1)-(3)). The right accrues while the person is a retired judge as specified in s 3(2).
Right to voluntary retirement pension. Judges meeting the age and service thresholds in s 4 (different ages for judges appointed before and after the increased retirement age day) may retire voluntarily and on retirement receive the pension they would have received had they retired at mandatory age (s 4(1)-(2)).
Right to a pension where retirement is due to ill‑health. A judge whose retirement was certified by the appropriate authority due to permanent disability or infirmity, and who meets service or pre‑appointment certification windows, is entitled to the pension they would have had if they had remained to mandatory retirement age, subject to the conditions in s 5(1)-(4).
Rights of surviving spouse. Where a judge dies either in service or after retirement, the surviving spouse who was spouse at the relevant time is entitled to a pension in an annual amount that is a percentage of the notional judicial salary, with the percentage determined by s 6. Special rules apply to spouses who married after retirement and to spouses of deceased retired judges (s 6(1A)-(5)).
Rights of eligible children. The Act provides pensions in respect of eligible children on death of a judge or surviving spouse, with rates set in ss 7A-7C and payment mechanisms in s 7D. Only one pension is payable in respect of a child at any time where multiple potential sources would apply; the Minister determines which applies (s 7D(1)).
Right to lump sum. A judge or acting judge not excluded by s 15 is entitled to a lump sum benefit under Part 3 calculated under s 13. Section 14 sets the events when such lump sums become payable, including death and cessation of employment in circumstances necessary to comply with Commonwealth superannuation standards.
Administrative duties and decision rules
Funding and payment duty. Pensions accrue daily and are payable fortnightly, and the government is duty‑bound to pay from the Consolidated Revenue Fund (s 10(1)(a)-(c)). Lump sums are similarly charged to Consolidated Fund where payable (s 10(2); s 14(5)).
Election and timing duties. A retired judge or other entitled person may elect to have part of a pension commuted to a lump sum solely to meet a superannuation contributions surcharge liability, and must make that election in writing to the Minister within two months of the surcharge liability arising unless the Minister allows a longer period (s 12(1)-(3)). The Minister must pay the lump sum if the election is by the retired judge (s 12(4)); if by another person, payment is discretionary and conditional on proof of application to surcharge (s 12(5)).
Attorney‑General’s restorative duty. The Attorney‑General must consider applications to restore a surviving spouse’s pension that ceased by remarriage, and may restore it where the Attorney‑General is satisfied the applicant is in need or restoration is otherwise justified (s 7(1)-(5)). Reasons must be provided if the Attorney‑General refuses (s 7(6)).
Ministerial allocation duties. Where more than one person claims a spouse’s or lump sum benefit, the Minister must determine entitlement and apportion payments if required; the Minister may withhold payment for up to 30 days or until satisfied as to the correct recipient (s 16B(2)-(6)).
Chief Justice recommendation requirement. The Minister’s ability to vary the manner of payment of a child’s pension under s 7E(1) is conditioned on a recommendation from the Chief Justice in certain cases, setting a formal advisory role for the judiciary in welfare directions (s 7E(2)).
Technical and actuarial duties
Actuarial advice and determinations. The Attorney‑General determines reduced pension amounts when earlier lump sums have been paid, “in accordance with actuarial advice” (s 10A(3)). Regulations that set calculation details for commutation or reduced reversionary pensions also require the Minister to certify that actuarial advice was obtained (s 18(2)). The presence of actuarial requirements assigns a technical duty to ensure reductions and commutation are soundly quantified.
Interactional duties
Coordination with Commonwealth superannuation. The Act requires application of Commonwealth superannuation standards for preservation and directs payments to regulated funds when necessary (s 14(2)-(3)). This imposes administrative compatibility duties on the Minister and Attorney‑General when interfacing with superannuation trustees.
Enforcement and review
The Act does not set out an internal appeal mechanism for many discretionary decisions; where the Minister or Attorney‑General exercises discretion (as in ss 7, 12, 16B), affected persons will have to rely on administrative law remedies outside the Act (judicial review), or seek further clarification from relevant departments. The Act itself provides statutory notice and reason obligations for non‑restoration decisions under s 7(6).
Rights subject to offsets and reductions
Dual pensions prohibition. A person receiving a pension under another jurisdiction for the same prior judicial office is not entitled to receive a pension under this Act (s 9(1)). Likewise, child pensions are limited where overlapping pensions are paid under other jurisdictional laws (s 9(2)).
Reduction where prior lump sum paid. If a judge or former judge has previously received a lump sum benefit for prior judicial service under this Act or another jurisdiction, current pensions payable under this Act must be reduced with regard to the lump sum’s value, with reductions determined by the Attorney‑General in accordance with actuarial advice (s 10A(1)-(3)).
These duties and rights allocate core financial entitlements to a narrow beneficiary class and distribute decision authority across executive actors and actuarial advisers. In consequence, a recipient’s legal position can depend on timing, prior benefit receipts, elections made under the Act and administrative determinations.
Penalties and enforcement
The text supplied does not create criminal offences, civil penalties or statutory administrative fines for non‑compliance by recipients or administrators. The Act’s enforcement architecture is administrative: it prescribes entitlements, payment rules, and executive discretions; it relies on departmental payment systems, actuarial determinations and ministerial or Attorney‑General directions for implementation. The principal enforcement mechanisms and administrative checks present in the Act are as follows.
Payment and fiscal enforcement
Charge on Consolidated Revenue. Pensions and specified lump sums are chargeable to the Consolidated Revenue Fund (s 10(1)(c); s 14(5)). This operational requirement compels responsible departments to provide budgetary appropriation and to effect payment; failure to pay would be a breach of statutory duty rather than a penal sanction provision under this Act.
Administrative discretion and internal checks
Ministerial withholding power. To manage competing claims, the Minister may withhold payment for up to 30 days after the death giving rise to entitlement or until satisfied as to the proper recipient, or until the Minister has made a determination about apportionment (s 16B(4)-(5)). This withholding is a tool to prevent paying funds to an improperly identified claimant; it is not framed as punitive but as a procedural safeguard.
Attorney‑General notice requirement. Where the Attorney‑General decides not to restore a pension under s 7, the Attorney‑General must provide written notice with reasons (s 7(6)). That statutory duty assists transparency and creates a record for any administrative review or judicial review that may follow.
Actuarial and regulatory certainties
Certainty through actuarial advice. Regulations concerning commutation and reduced reversionary pensions may be made only where the Minister has certified that actuarial advice was obtained (s 18(2)). That requirement is an administrative control intended to ensure reductions and commutation calculations rest on technical analysis. While not a penalty, this provision imposes a procedural precondition on regulation‑making which enforces quality of decisionmaking.
Judicial review and statutory rights
Absence of internal appeal routes. The Act expects decisions to be taken by the Minister or Attorney‑General in many contested situations (ss 7, 12, 16, 16B). It does not provide a statutory right of appeal to a tribunal or court within the Act. As a result, enforcement of rights or challenges to administrative decisions would proceed through common law or statutory administrative law remedies such as merits review mechanisms where available in other statutes, or judicial review for legality, reasonableness, or procedural fairness. The Act itself requires reasons in at least one instance (s 7(6)), which supports judicial review processes.
Potential for recovery and offsets
Reduction where prior lump sum paid. The Act mandates reductions of pensions where prior lump sums have been paid for the same prior judicial service, and directs that reversionary pensions likewise be reduced if part of a pension has been commuted (s 10A(1)-(2); s 12A(1)). Those are offset mechanisms rather than penalties. The Attorney‑General determines the reduced amount with actuarial advice (s 10A(3)), which is the enforcement mechanism for preventing duplicate benefit yield.
No express penalty provisions
The Act contains no express criminal penalty, forfeiture penalty, or administrative monetary penalty for misstatement, fraud or other illicit conduct in the award or receipt of benefits. If fraudulent claims or misrepresentations occur, enforcement would therefore rely on general criminal statutes (fraud, false accounting) or procedural recovery actions under public law and not on this Act’s own penalty schedule.
Implications for administrators and recipients
Administrative risk. Because the Act allocates discretion to ministers and to the Attorney‑General, administrative errors, delays or misallocations are unlikely to be remedied by statutory penalty provisions; remedies will be procedural, including ministerial correction, restitution by the State and potential judicial review claims.
Compliance risk for recipients. The two‑month election period for commutation (s 12(3)), the requirement to elect to direct lump sums to approved funds (s 14(2)), and the prescribed eligibility criteria (length and timing of service, spouse relationships, and the de facto partner eligibility date in Schedule 1 cl 4) are compliance points. Failure to satisfy these administrative gates can result in loss or deferment of benefits, but the Act imposes no separate financial penalties for such failures.
In sum, enforcement in this statute is administrative, budgetary and adjudicative through executive decisions; it does not create bespoke criminal or civil penalty regimes within the Act itself. Where the Act allocates discretionary powers, procedural safeguards such as notice and actuarial advice are required in defined circumstances.
How it interacts with other laws
The Act explicitly cross‑references Commonwealth and other State legislation and maps historic offices to current ones for continuity. The principal interactions are with Commonwealth superannuation law, family law superannuation legislation, state judicial and courts legislation, health administrative arrangements for ill‑health certification, and succession law. The text supplied provides specific cross‑references and transitional rules.
Key cross‑references and points of interaction
Commonwealth superannuation law. Part 3 and s 13 expressly base the lump sum calculation on the “superannuation guarantee” rate, which is defined partly by reference to the Commonwealth Superannuation Guarantee (Administration) Act 1992 (s 13(2)). Section 14 incorporates “relevant Commonwealth superannuation standards” and prescribes that former judges can elect to have amounts preserved by payment to regulated superannuation funds or approved deposit funds as defined in the Commonwealth Superannuation Industry (Supervision) Act 1993 and related instruments (s 14(2)-(3)). The Act therefore requires administrators to apply Commonwealth preservation rules and to interact with regulated funds and their trustees.
Family law superannuation splitting. Section 16A specifies that for the purposes of the Family Law Act 1975, Part VIIIB and related Commonwealth regulations, the accrued benefit multiple for a judge is the period of service in years and parts of years. This provides direct feed‑through to family law property division processes where superannuation splitting orders are sought, anchoring the measure of the judge’s superannuation interest within family law processes.
Judicial offices and retirement age changes. The Act references the Judicial Officers Act 1986 and the “increased retirement age day” as the date on which amendments to retirement age provisions took effect (s 2). Schedule 1 cl 5 makes plain that increases to maximum judicial retirement age do not affect judges and acting judges who retired or died before the increased retirement age day. There are consequential interactions with the Constitution Act 1902 concerning application of increased retirement age to holders appointed before the change (s 2 note).
Health administration for ill‑health certifications. Section 5 defines an “appropriate authority” for ill‑health certifications by reference to the Director‑General of Public Health historically, then the Health Commission and subsequently to the Secretary of the Department of Health or an authorised person, linking retirement on medical grounds to administrative health authorities.
Succession law. Section 16 permits the Minister to pay pension benefits to legal personal representatives if the Minister considers that proceedings may be brought under Chapter 3 of the Succession Act 2006 in relation to the estate or notional estate of a deceased judge, enabling practical coordination with succession dispute resolution and estate administration.
State laws dealing with prior pension entitlements. Section 9 prevents dual pensions where a person receives a pension under Commonwealth, State or Territory law that covers the same prior judicial office as defined in s 8(1)(b), requiring administrators to check entitlement under alternative regimes and avoid double payments.
Operational and compliance interactions
Preservation and trustee interaction. Where a lump sum would otherwise fall foul of preservation rules, the Act enables former judges to elect to have amounts paid to regulated superannuation funds or approved deposit funds, or otherwise to an Attorney‑General approved fund (s 14(2)-(3)). This requires coordination between the Attorney‑General’s office and fund trustees, and may involve trustee compliance with Commonwealth supervisory rules.
Actuarial regulation and ministerial certification. Regulations that detail commutation calculations or reversionary reductions require that actuarial advice be obtained and certified by the Minister (s 18(2)). This ties the Act’s internal calculation mechanics into actuarial professional standards and to regulatory procedures under state regulation‑making powers.
Temporal interactions and transitional rules
De facto partner amendments. Schedule 1 cl 4 fixes a “de facto partner eligibility date” (1 May 2005) and prescribes that de facto partner provisions are to be treated as having effect from that date for qualifying deaths after that date. This interacts with family law and relationship recognition rules, creating a temporal cut‑off for eligibility under the Act.
Service counting from 1 July 1992. Schedule 1 cl 2 states that for lump sum calculations, any service on or after 1 July 1992 is to be taken into account, whether continuous or not. That date is the commencement of the Commonwealth Superannuation Guarantee (Administration) Act 1992, and the clause ensures alignment with Commonwealth superannuation history.
Tension points and practical coordination
Multiple regimes for the same beneficiary. Because pensions under this Act may interact with other State, Territory and Commonwealth pensions (s 9), administrators must check for alternatives before making payments and may need to reduce or refuse payments where another regime applies.
Family law valuation and splitting. Section 16A simplifies the family law valuation by fixing accrued benefit multiples as time served, but trustees and family lawyers will still need to convert that multiple into an actuarial valuation consistent with Commonwealth family law superannuation regulations.
Constitutional considerations. The Act’s reference to the Superannuation Contributions Tax (Members of Constitutionally Protected Superannuation Funds) Imposition Act 1997 and its commutation provisions (s 12) links state pension payments to Commonwealth tax and surcharge frameworks that operate differently depending on the constitutional protection status of particular funds. Administrators should coordinate with tax advisers.
Overall, the Act is designed to operate alongside Commonwealth superannuation standards and state judicial statutes; practical implementation depends on coordination with superannuation trustees, family law processes, health authorities for ill‑health certification, and the Attorney‑General’s and Minister’s offices for discretionary decisions.
Amendment history
The supplied text contains statutory amendment annotations beside many sections. These annotations identify the principal amending Acts and years that materially changed the Act. The Act has been amended repeatedly to reflect institutional changes in the courts, superannuation law, recognition of de facto partners, and alterations to retirement age. Below is a source‑grounded chronology and description of the types of amendments shown in the text.
Foundational insertions and early amendments
Original commencement. The Act commenced on 1 January 1954, per s 1(2).
Early amendments through the 1960s and 1970s. Notes indicate amendments in the 1960s and 1970s to sections such as s 2 (multiple amendments: 1965 No 12; 1973 No 9; 1974 No 106; 1979 No 205) and s 3 (amended 1969 No 4; 1972 No 69; 1974 No 106). These changes reflect periodic statutory maintenance and recalibration of pension percentages and continuity of offices.
Major structural amendments and modernisation
1970s-1980s continuity provisions. Sections 2A and 2B were inserted to map continuity of old office titles to new ones following the Supreme Court Act 1970 and District Court Act 1973 (s 2A Ins 1970 No 52 Second Sch; s 2B Ins 1973 No 9 Sch 2).
1990s changes. Notable amendments include adjustments to pensions in the early 1990s (s 5 and s 6 carry amendment notes up to 1992 and 1994; s 7 and s 7 restoration provisions were inserted in 1994 No 11 Sch 1). The 1996 Courts Legislation Amendment Act made particular amendments noted in s 5 (Sch 1.4).
Insertion of lump sum benefits and related regulation framework
1998-2000: introduction of commutation and lump sum mechanics. Section 12 (commutation for superannuation contributions surcharge) was inserted in 1998 No 42 Sch 1. Part 3 (Lump sum benefits) including ss 13-15 and Schedule 1 transitional provisions was inserted by Courts Legislation Amendment Act 2000 (Ins 2000 No 31 Sch 7). Section 10A was inserted in 2000 No 31 Sch 7 to provide reduction rules where lump sums had already been paid.
2001-2005: adjustments to payments, de facto partner recognition and payments to acting judges. Section 11B (provision relating to Chief Judge of the Land and Environment Court) was inserted in 2001 No 85 Sch 3. Significant amendments in 2005 included the de facto partner amendments in Schedule 5 to the Courts Legislation Amendment Act 2005, and multiple changes set out in s notes and Schedule 1 cl 4, expanding spouse definitions and treatment of de facto partners (Sch 1 cl 4 references 2005 No 31 Sch 5).
Superannuation and actuarial modernisation
2014: amendment to s 13 referencing changes to the superannuation guarantee and calculation mechanics (Am 2014 No 14 Sch 3.2).
2016-2018: industrial relations and retirement age adjustments. Section 2D (continuity of office,Industrial Relations Commission and Industrial Court) was inserted 2016 No 48 Sch 2.23 to handle abolition and mapping of IRC offices. The Justice Legislation Amendment Act (No 3) 2018 changed the mandatory judicial retirement age structure and prompted related adjustments across the Act, annotated in multiple sections with 2018 No 87 Sch 2.3 (for example s 2, s 3, s 4, s 5, s 6, s 7A, s 7B, s 7C). Schedule 1 cl 5 was added to preserve the Act as in force before the 2018 amendments for judges who retired or died before the “increased retirement age day”.
Technical and procedural amendments
Regulations and actuarial certification. Section 18 was inserted and amended (Ins 1998 No 42 Sch 1; renumbered 2000 No 31 Sch 7 note) to require ministerial certification that actuarial advice was obtained before regulations are made for certain commutation or reduction matters.
Family law and accrued benefit multiples. Section 16A was inserted 2003 No 40 Sch 1.21 to specify the accrued benefit multiple for family law superannuation purposes.
Sources within the supplied text
The text provides direct amendment notes beside sections. For instance, s 2 includes a list of amendment instruments ranging from 1965 No 12 through to 2018 No 87 Sch 2.3. Section‑specific amendment notes appear for ss 3, 5, 6, 7A-7C and many others, each identifying the amending Act and year.
Substantive trends visible from amendments
Expansion of covered offices and continuity rules to accommodate structural changes in courts (1970s, 1980s, 1990s, 2016).
Introduction of lump sum and commutation mechanisms to align pensions with Commonwealth superannuation standards and taxation frameworks (late 1990s, 2000).
Extension of entitlement recognition to de facto partners and modern relationship forms (2005; Schedule 1 cl 4).
Adjustment of retirement age rules and related protections for existing beneficiaries following the 2018 increase in maximum judicial retirement age, including non‑application to those who had already retired or died before the change (Schedule 1 cl 5; s 2 notes).
For practitioners, the amendment notes in the supplied text are the authoritative pointer to which provisions changed and when. When advising, confirm the operative text and the specific amending instruments cited in the section notes, and consult the consolidated statutory version in the official database for any post‑2018 amendments not shown here.
Litigation history
The supplied statute text does not list or cite judicial decisions, and it does not include a litigation history. The Act as presented names no cases and contains no annotation of judicial interpretation or report of litigation outcomes. Consequently, the text itself does not provide precedential material.
From the statutory mechanisms, however, the Act creates a number of decision points that commonly produce litigation or administrative review in analogous regimes. Those decision points are potential loci of dispute, and practitioners should be aware of them as likely subjects of challenge, even though the supplied text does not record any cases:
Ministerial and Attorney‑General discretions. Discretionary decisions regarding restoration of pensions (s 7), determination and apportionment among competing spouses and withholding of payments (s 16B), approval of lump sum payments to regulated funds where no election is made (s 14(3)), and the Attorney‑General’s actuarial determinations under s 10A(3) are administrative decisions that may be subject to judicial review on standard public law grounds such as error of law, failure to observe procedural fairness and irrationality.
Eligibility and relationship disputes. Determinations about who qualifies as a spouse or de facto partner for purposes of survivor pensions, particularly around the de facto partner eligibility date in Schedule 1 cl 4, may generate questions of fact and law that could be litigated in family or administrative courts.
Calculation, actuarial advice and reductions. The Act requires actuarial advice to determine reductions when prior lump sums have been paid (s 10A(3)) and to certify regulations under s 18(2). Disputes about the actuarial methodology and the resulting reduction calculations are plausible, and could be litigated as questions of fact, or challenged on grounds such as failure to follow the procedural preconditions the Act requires.
Commutation elections and timing. The two‑month deadline for commutation elections to meet superannuation contributions surcharge liabilities (s 12(3)) and any ministerial decision to allow a longer period could be contested where a person misses the deadline or disputes the exercise of delegated discretion.
Succession and estate interaction. Section 16 empowers payment to legal personal representatives where succession proceedings might be instituted; disputes over estate entitlements may therefore arise in succession proceedings and create cross‑over litigation with pension allocations.
Practical guidance for litigation risk assessment
Where administrative discretions are exercised, affected parties should seek reasons as some statutory decisions require notice with reasons (s 7(6)), and the availability of reasons supports applications for judicial review. The Act’s silence on internal appeal mechanisms means judicial review is likely to be the primary legal remedy for errors of law or procedural unfairness.
The Act requires actuarial advice in several contexts; challengeable points often involve technical actuarial methodology, so expert evidence and careful procedural records about how actuarial advice was obtained will be necessary if disputes reach the courts.
Because the Act links to Commonwealth superannuation law and to family law processes, litigation may cross jurisdictions and involve trustees, tax authorities and family law courts, not only administrative law fora.
Recommendation
Practitioners preparing a litigation strategy should search case law databases and administrative tribunal decisions for NSW judicial pension disputes, obtain the contemporaneous consolidated Act and regulations, and assemble the administrative decision record and any actuarial advice relied upon. The supplied text does not record litigation history; therefore confirm whether there have been reported or unreported cases after the most recent amendments in this text.
Gotchas
Several operational and legal pitfalls are embedded in the Act’s mechanics, timing rules and discretionary gates. Practitioners and administrators should note the following traps and friction points that commonly cause loss of entitlement, delay, or conflict.
Timing traps and deadline risks
Two‑month election window for commutation. Section 12(3) allows a retired judge or other entitled person to elect in writing to have part of their pension commuted for the purpose of paying a superannuation contributions surcharge liability, but the election must be made not later than two months after the liability arises, unless the Minister allows a further period. Missing this tight deadline risks loss of the commutation option, with limited statutory relief other than ministerial discretion to extend the period.
Ministerial withholding and 30‑day hold for competing spouse claims. Section 16B(4) allows the Minister to withhold payment of a pension or lump sum until 30 days after death or until the Minister is satisfied about the correct claimant. This creates a risk of short delays in disbursements; potential beneficiaries should be prepared for estate liquidity constraints in the first month after death.
Service, eligibility and counting issues
Exclusion of leave without pay. Section 2(1A) takes any reference to the period of service as a judge to exclude any time on leave without pay. A judge who has significant unpaid leave may find service years reduced, potentially affecting entitlements that rely on minimum service thresholds (s 3 requires five years for core pension entitlements, and s 4 requires 10 years for early voluntary retirement).
Prior judicial service complexities. Section 8 treats a broad variety of prior service as “prior judicial service”. Section 9 prevents dual pensions where another jurisdiction pays for that prior service. Determining whether prior service falls under s 8 and whether another pension regime covers it can be complex, and errors can lead to overpayments or improperly denied benefits.
Acting judge continuation rules. Under s 14(6), an acting judge who is reappointed for a further consecutive term is taken not to have ceased employment as an acting judge for lump sum purposes. Practitioners who advise acting judges should ensure the continuity requirement is met exactly; otherwise an acting judge might unintentionally trigger a cessation event or lose eligibility.
Intersections with Commonwealth rules
Superannuation guarantee variable and calculation complications. The lump sum formula in s 13 uses the “superannuation guarantee” rate (S) and requires separate calculations where the rate changes during a judge’s service (s 13(1A)). That means trustees and administrators must track historical S rates across each judge’s service and run multiple pro‑rata calculations. The statute’s reliance on Commonwealth definitions means that changes in Commonwealth law (for example to charge percentages) directly alter state calculations.
Preservation and direction to regulated funds. Section 14 requires former judges to elect to have amounts preserved by payment to regulated funds where a relevant Commonwealth standard would require preservation; absent election, the amount is to be paid to a regulated fund approved by the Attorney‑General (s 14(2)-(3)). Failure to make an election can displace the former judge’s choice of fund and create delays while approval is sought.
Discretionary decisions and evidentiary requirements
Chief Justice recommendation for child pension payment variations. Section 7E(2) requires the Chief Justice’s recommendation before the Minister may vary a child’s pension payment manner. Where a claimant seeks a special arrangement, missing or delayed Chief Justice input can delay payment.
Restoration of spouse’s pension and “need” criteria. Section 7 permits the Attorney‑General to restore a pension that ceased due to remarriage, where satisfied the applicant is “in need” or restoration is otherwise justified. The statutory test uses broad discretionary language. Applicants must prepare evidence of need and may face non‑restoration despite genuine hardship where the Attorney‑General is not persuaded.
Calculation and reduction pitfalls
Reduction where lump sum previously paid. Section 10A requires pensions to be reduced where a lump sum benefit has previously been paid for prior judicial service, and the Attorney‑General determines the reduced amount “in accordance with actuarial advice”. Calculation methodologies thus materially affect benefits. If actuarial advice is not clearly documented or is contested, disputes over quantum can arise.
Reversionary pension reductions after commutation. Sections 12A and 10A mandate that commutation of a pension reduces any subsequent reversionary pensions. Beneficiaries contemplating commutation must understand long‑run effects, including reductions to surviving spouse entitlements.
Transitional and cohort issues
Increased retirement age non‑retroactivity for existing beneficiaries. Schedule 1 cl 5 provides that the Act as it stood before the 2018 increase in retirement age continues to apply to judges and acting judges who retired or died before the “increased retirement age day”. That preserves cohort entitlements, but practitioners must be careful to identify whether a judge falls within the preserved cohort or within the new regime, because pension mechanics (and voluntary retirement ages under s 4) differ.
De facto partner eligibility date. Schedule 1 cl 4 fixes 1 May 2005 as the de facto partner eligibility date. Spouses who died before that date are not treated as including de facto partners. Cases involving relationships across that cut‑off date require careful factual analysis and documentation.
Administrative delegation and recordkeeping
Delegation of ministerial functions. Section 12(9) permits the Minister to delegate functions under s 12(3) and (4) by signed instrument to a person prescribed by the regulations. In practice, ensure delegations are properly documented and that the delegate has been prescribed in regulation; otherwise elections or payments might be administratively defective.
Documentation of actuarial advice. Regulations under s 18(2) may be made only where the Minister certifies that actuarial advice was obtained. Records of that advice, the assumptions used, and the rationale for reductions are essential to defend the administration of the Act against challenge.
In short, the “gotchas” revolve around strict time limits, precise definitions of service, interactions with Commonwealth superannuation and preservation rules, ministerial and Attorney‑General discretion, and the need for robust actuarial and administrative records to demonstrate compliance.
How to comply
Below are practical, source‑grounded steps and checklists for judges, surviving spouses, estate administrators, and departmental officers who must implement or administer entitlements under the Act. Each recommendation cites the relevant statutory provision in the supplied text.
For judges and acting judges (advisers to them)
Track service periods carefully. Ensure continuous records of judicial service are available, and record any periods of leave without pay since such periods are excluded from service calculations under s 2(1A). For lump sum calculations, ensure service since 1 July 1992 is accurately captured, as Schedule 1 cl 2 requires inclusion of any service on or after that date.
Understand pension versus lump sum eligibility. If you are eligible for a pension under Part 2, you generally cannot receive a lump sum under Part 3 on cessation (s 15(2)(a)). Acting judges appointed to judicial office after an acting term are excluded from lump sum receipt when the acting term ends with appointment as a judge (s 15(2)(b)).
Plan for voluntary retirement options. If contemplating voluntary retirement under s 4, check the relevant age and appointment date thresholds; judges appointed before the increased retirement age day require a minimum age of 60 and 10 years’ service, and those appointed on or after that day require a minimum age of 65 and 10 years’ service (s 4).
For ill‑health retirement, obtain proper certification. Section 5 requires certification by the designated “appropriate authority” depending on the time of retirement; ensure the correct authority (historically, Director‑General of Public Health; more recently, Secretary of the Department of Health or authorised delegate) provides the required certificate and that service thresholds are documented to secure entitlement under s 5(1)-(4).
If facing a superannuation contributions surcharge, act within the two‑month window. To have part of the pension commuted to meet a surcharge, make a written election to the Minister within two months of the liability arising unless a longer period is allowed by the Minister (s 12(3)). Keep documentary evidence of the liability and of submission of the election.
For surviving spouses, de facto partners and children (and their advisers)
Establish relationship timing and dependency facts. For spouse pensions, eligibility and quantum may depend on whether the spouse was married or in a relationship at the time of retirement or death and on timing relative to the de facto partner eligibility date (Schedule 1 cl 4; s 6(1A)-(1B)). Collect marriage certificates, relationship documentation and evidence of dependency for qualifying children as defined in s 2.
Apply promptly for restoration where pension previously ceased on remarriage. Under s 7, a person whose pension ceased due to remarriage before the commencement of the 1994 amendment may apply to the Attorney‑General for restoration. Prepare evidence of need or other justification, and expect to receive written reasons if the Attorney‑General refuses (s 7(6)).
For child pensions, identify the guardian and be aware of ministerial discretion. Child pensions under s 7D(2) are to be paid to the guardian for support and education, but the Minister may direct alternative arrangements on the Chief Justice’s recommendation under s 7E. Ensure guardianship arrangements are documented and consult the Chief Justice where a special arrangement is anticipated.
For estate administrators and personal representatives
Notify the Minister and Attorney‑General where estate proceedings are likely. Section 16 authorises payment to legal personal representatives where the Minister considers proceedings may be instituted under Chapter 3 of the Succession Act 2006 in relation to the estate. Advise administrators to notify the Minister early and provide documentation to facilitate payment decisions.
Expect potential withholding while identity of spouse claims is resolved. Where multiple persons claim to be the surviving spouse, the Minister may withhold payment until satisfied or until a determination is made. Prepare evidence proving spousal status and consider applying for a Ministerial determination under s 16B(3) to speed allocation.
For departmental officers, trustees and lawyers advising government
Maintain actuarial documentation and compliance with s 18(2). Regulations concerning commutation and reductions must have ministerial certification that actuarial advice was obtained. Ensure actuarial reports, assumptions and the ministerial certification are stored and readily available.
Coordinate with superannuation trustees for preservation. Section 14 requires that if part of a lump sum would have to be preserved under Commonwealth standards, the former judge can elect to have that preserved amount transferred to a regulated fund, or otherwise the Attorney‑General may designate an approved fund. Maintain a list of Attorney‑General approved funds and liaise with trustees to accept transfers.
Prepare to calculate lump sums with variable S rates. Under s 13, the lump sum formula uses the relevant superannuation guarantee rate and requires separate calculations if that rate changes during service (s 13(1A)). Maintain historical tables of the superannuation guarantee charge percentage and ensure systems can produce segmented calculations.
Implement procedural checklists for elections and restoration applications. For s 12 elections, s 7 restoration applications, and s 7E orders, implement forms, evidence checklists and internal timelines to ensure statutory deadlines and recommendation gates (for example, Chief Justice recommendations) are met.
For family law practitioners
Use service years as the accrued benefit multiple. Section 16A fixes the accrued benefit multiple for judges and retired judges at the period of service, simplifying one part of the family law calculation for Part VIIIB of the Family Law Act. Nevertheless, the actuarial conversion into a dollar value remains necessary under Commonwealth family law superannuation regulations.
Recordkeeping and audit
Maintain complete service and leave records, relationship documentation, copies of all elections and applications, copies of actuarial reports, and ministerial or Attorney‑General determinations. These are essential to defend administrative positions and to respond to judicial review or tribunal challenges.
Regulatory and delegation compliance
Ensure any delegations under s 12(9) (delegation of Minister’s functions) are made by signed instrument and that the delegate is prescribed by regulation if required. Keep records of any delegations and the basis for delegated decisions.
In all dealings, reference the statutory provisions cited here (ss 2, 3, 4, 5, 6, 7, 7D, 7E, 8, 9, 10, 10A, 12, 12A, 13-15, 16, 16A, 16B, 18 and Schedule 1) and obtain actuarial and legal advice where calculations or discretionary decisions are material.
Section 2CContinuity of office—Workers’ Compensation Commission
(ii) is receiving full-time education at a school, university or college.
increased retirement age day means the day on which the amendments made to section 44 (Retirement of judicial officers) of the Judicial Officers Act 1986 by the Justice Legislation Amendment Act (No 3) 2018 commenced.
Judge means a person holding the office of Chief Justice or puisne judge of the Supreme Court of New South Wales, President of the Court of Appeal or Judge of Appeal, President or other member of the Industrial Commission of New South Wales, Judge of the Industrial Court, judicial member of the Industrial Relations Commission of New South Wales, Chief Judge or Judge of the Land and Environment Court, Chief Judge or Judge of the District Court, or Chief Judge or Judge of the Compensation Court of New South Wales.
mandatory judicial retirement age, in relation to a judge, means the maximum age at which the judge is required by law to retire.
Note—
Before the increased retirement age day, section 44 of the Judicial Officers Act 1986 provided for a maximum retirement age for judges of 72 years.
Section 44 of the Judicial Officers Act 1986 was amended on the increased retirement age day by the Justice Legislation Amendment Act (No 3) 2018 to increase the maximum retirement age for judges to 75 years. Clause 9 of Schedule 6 to the Judicial Officers Act 1986 provides that the new retirement age does not apply to judges holding office who were appointed before the increased retirement age day unless they consent to the change applying to them as required by section 55 (2) of the Constitution Act 1902. The retirement age of 72 years continues to apply to judges who do not consent to the increased retirement age applying to them.
Retired judge means a judge who has retired as referred to in section 3 (1), 4 or 5 (1).
surviving spouse of a judge, retired judge, former judge or former acting judge who has died (the deceased person) means a person who was the spouse of the deceased person at the time of the death of the deceased person.
Note—
The Interpretation Act 1987 contains definitions and other provisions that affect the interpretation and application of this Act.
(1A) For the purposes of this Act, any reference to the period for which a person has served as a judge (however expressed) is taken to exclude any time for which the person has been on leave without pay, whether before or after the commencement of this subsection.
(2) For the purposes of this Act, the notional judicial salary of a retired or deceased judge at any time is an amount equal to the salary payable at that time to the holder of a judicial office having a status equivalent to that of the judicial office held by the retired or deceased judge:
(a) immediately before his or her retirement if he or she:
(i) is living at that time, or
(ii) died after he or she retired, or
(b) immediately before his or her death if he or she died in office.
(3) Notes included in this Act do not form part of this Act.
s 2: Am 1965 No 12, sec 14 (a); 1973 No 9, Sch 2; 1974 No 106, sec 2 (a); 1979 No 205, Sch 2, Part 1; 1980 No 44, Sch 1 (1); 1984 No 93, Sch 1; 1991 No 34, Sch 3; 1992 No 34, Sch 1; 1996 No 17, Sch 5; 1998 No 42, Sch. 1 [1]; 2000 No 31, Sch 7 [2]; 2001 No 85, Sch 3 [1]; 2005 No 31, Sch 5 [2]; 2006 No 34, sec 4; 2010 No 19, Sch 3.52 [1] [2]; 2016 No 48, Sch 2.23 [1]; 2018 No 87, Sch 2.3 [1].
2A Continuity of judicial office in the Supreme Court
2A Continuity of judicial office in the Supreme Court
2A Continuity of judicial office in the Supreme Court
Each judicial office in the Supreme Court appearing in the First Column of the Table below, as that office was constituted immediately before the commencement of the Supreme Court Act 1970, other than of Part 9 of that Act, shall, for the purposes of this Act, be identical with the office under the Supreme Court Act 1970, named in the Second Column of the Table opposite to the name of the firstmentioned office:
Table
| First Column | Second Column |
| Chief Justice. | Chief Justice. |
| President of the Court of Appeal. | President of the Court of Appeal. |
| Judge of Appeal. | Judge of Appeal. |
| Additional Judge of Appeal. | Additional Judge of Appeal. |
| Puisne judge. | Judge. |
| Acting judge. | Acting judge. |
s 2A: Ins 1970 No 52, Second Sch.
2B Continuity of judicial office in the District Court
2B Continuity of judicial office in the District Court
2B Continuity of judicial office in the District Court
The office of Chairman of the District Court Judges and of District Court judge under the District Courts Act 1912 shall, for the purposes of this Act, be identical with the office of Chief Judge and of Judge, respectively, under the District Court Act 1973.
s 2B: Ins 1973 No 9, Sch 2.
2C Continuity of office—Workers’ Compensation Commission
2C Continuity of office—Workers’ Compensation Commission
2C Continuity of office—Workers’ Compensation Commission
The office of Chairman of the Workers’ Compensation Commission and of member of the Workers’ Compensation Commission under the Workers’ Compensation Act 1926 (as in force immediately before the commencement of Schedule 6 (2) to the Workers’ Compensation (Amendment) Act 1984) shall, for the purposes of this Act, be identical with the office of Chief Judge and of Judge, respectively, of the Compensation Court of New South Wales under the Compensation Court Act 1984.
s 2C: Ins 1984 No 93, Sch 1.
2D Continuity of office—Industrial Relations Commission and Industrial Court
2D Continuity of office—Industrial Relations Commission and Industrial Court
2D Continuity of office—Industrial Relations Commission and Industrial Court
(1) On and from the abolition of the offices of President of the Industrial Relations Commission (IRC President), Vice-President of the Commission (IRC Vice-President), Deputy President of the Commission (IRC Deputy President) and judicial member of the Commission (IRC judicial member):
(a) for a retired or deceased IRC President—the office of Chief Judge of the Land and Environment Court (or, if that office is abolished, a comparable judicial office) is to be treated as the judicial office of equivalent status to the office of IRC President in determining the notional judicial salary under this Act for the former IRC President, and
(b) for a retired or deceased IRC Vice-President, IRC Deputy President or IRC judicial member (except if the person was also the IRC President)—the office of puisne Judge of the Supreme Court is to be treated as the judicial office of equivalent status to any of those abolished offices in determining the notional judicial salary under this Act for a former holder of any of the abolished offices.
Note—
Part 18 of Schedule 4 to the Industrial Relations Act 1996 (as inserted by the Industrial Relations Amendment (Industrial Court) Act 2016) abolished the Industrial Court and the offices of IRC President, IRC Vice-President, IRC Deputy President and IRC judicial member. It appointed the incumbent IRC President (who was also an IRC judicial member) as a Judge of the Supreme Court and preserved the person’s final remuneration as IRC President until the remuneration of a puisne Judge of the Supreme Court exceeded that remuneration. It also provided that the IRC President’s service as an IRC judicial member was to count towards his service as a Judge of the Supreme Court for all purposes (including this Act).
(2) Subsection (1) extends to a retired or deceased former IRC President who was appointed as a Judge of the Supreme Court by Part 18 of Schedule 4 to the Industrial Relations Act 1996 if that person is entitled at the time of retirement or death to receive remuneration by reference to the person’s former office as IRC President instead of as a Judge of the Supreme Court.
(3) To avoid doubt, any notional judicial salary for a retired or deceased IRC President who was also an IRC judicial member that was determined before the abolition of those offices is taken to have been validly determined for the purposes of this Act if it was determined by reference to the salary payable to a current IRC President rather than to a current IRC judicial member.
s 2D: Ins 2016 No 48, Sch 2.23 [2].
Part 2 Pensions
Part 2 Pensions
Part 2 Pensions
pt 2, hdg: Ins 2000 No 31, Sch 7 [3].
3 Pension for certain judges who retired, or retire, at mandatory judicial retirement age
3 Pension for certain judges who retired, or retire, at mandatory judicial retirement age
3 Pension for certain judges who retired, or retire, at mandatory judicial retirement age
(1) This section applies to a retired judge who retired from his or her judicial office before, on or after the appointed day pursuant to:
(a) the Judges Retirement Act 1918,
(b) section 14 (2) of the Industrial Arbitration Act 1940,
(c) section 4 (2) (c) (iv) of the Crown Employees Appeal Board Act 1944,
(d) section 31 (3) (b) of the Workers’ Compensation Act 1926, or section 9 (3) of the Compensation Court Act 1984, or
(e) section 9 (3) of the Land and Environment Court Act 1979,
having served as a judge in that judicial office for not less than five years.
Note—
Section 55 (2) of the Judicial Officers Act 1986 provides for the reference in this section to the Judges Retirement Act 1918 to be read as a reference to the Judges Retirement Act 1918 or the Judicial Officers Act 1986.
(2) A retired judge to whom this section applies is entitled:
(a) where he or she retired before the appointed day—during that part of the period of his or her retirement that commenced on the appointed day, or
(b) where he or she retired on or after the appointed day—during the period of his or her retirement,
to a pension at an annual rate that, at any time during that period, is a percentage, calculated as provided by subsection (3), of his or her notional judicial salary at that time.
(3) The percentage referred to in subsection (2) is:
(a) in the case of a retired judge who retired before 14 March 1969—the sum of:
(i) twenty-five per centum, and
(ii) three and one-half per centum for each completed year of service in excess of five years (disregarding any such excess years above ten in number) that he or she served as a judge in his or her judicial office,
(b) in the case of a retired judge who retired on or after 14 March 1969, and before the appointed day—the sum of:
(i) twenty-five per centum, and
(ii) five per centum for each completed year in excess of five years (disregarding any such excess years above seven in number) that he or she so served,
(c) in the case of a retired judge who retired on or after the appointed day after serving as a judge in his or her judicial office for less than ten years:
(i) twenty-five per centum,
(ii) five per centum for each completed year in excess of five years that he or she so served, and
(iii) the percentage that bears to five per centum the same proportion as the number of days in any incomplete year that he or she so served bears to 365, or
(d) in the case of a retired judge who retired on or after the appointed day having so served for ten years or more—sixty per centum.
s 3: Am 1969 No 4, sec 2 (a); 1972 No 69, sec 3 (a). Subst 1974 No 106, sec 2 (b). Am 1979 No 205, Sch 2, Part 1; 1984 No 93, Sch 1; 1992 No 34, Sch 1; 2018 No 87, Sch 2.3 [2].
4 Pension for certain judges retiring voluntarily before mandatory judicial retirement age
4 Pension for certain judges retiring voluntarily before mandatory judicial retirement age
4 Pension for certain judges retiring voluntarily before mandatory judicial retirement age
(1) A judge appointed before the increased retirement age day who is at least 60 years of age and has served as a judge for not less than 10 years:
(a) may retire voluntarily from the judge’s judicial office, and
(b) on retiring, is ent
This is an opening excerpt, not the complete document.
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