National Crime Authority (Status and Rights of Former Chairman) Act 1984

The Act defines several key terms, though much of its operation relies on concepts incorporated from other statutes. “Office under the Commonwealth” is broadly defined in s 3 to include any office established by Commonwealth law or by a law of a territory (other than the Northern Territory), any appointment by the Governor‑General or a Minister, any office or employment in a Commonwealth‑controlled corporation, or any directorship in a company over which the Commonwealth can exercise control. This wide definition ensures that if Stewart later takes any senior Commonwealth role, his pension and leave benefits are affected by the deferral provisions in s 7(4) and s 8(d). “Remuneration” is defined to include any expenses of office allowance, annual allowance, or other allowance in the nature of remuneration, not just salary. “Retirement” has the same meaning as in the Judges’ Pensions Act 1968, which generally refers to ceasing to hold office due to age, incapacity, or resignation.

The central conceptual device is the legal fiction of “deemed service as a judge.” Section 8(a) and (aa) deem service as NCA Chairman and RAC Chairperson to be service as a judge for pension purposes. This fiction allows Stewart to preserve his eligibility for judicial pensions even though those statutory roles are not judicial offices. Without this provision, his resignation from the NSW Supreme Court would likely have broken his pension entitlement. Section 7(2)(b) employs a similar fiction for long leave: periods served as a NSW Supreme Court judge, NSW District Court judge, NCA Chairman, and RAC Chairperson are all deemed to be periods of service as an ACT Supreme Court judge. This aggregates service across multiple jurisdictions and roles.

Another key concept is the “mutatis mutandis” application of conditions. Section 7(1) says Stewart’s conditions of service as NCA Chairman shall be, “mutatis mutandis, the same as those applicable to a Judge of the Supreme Court of the Australian Capital Territory.” The Latin phrase means “with the necessary changes having been made.” This creates a degree of interpretive uncertainty: which changes are necessary? For example, an ACT Supreme Court judge is subject to the Judges’ Pensions Act 1968 and the Judicial Entitlements Act 1984, but Stewart’s conditions are modified by s 8 of this Act itself. So the “mutatis mutandis” direction must be read together with the specific modifications elsewhere in the Act. The same phrase appears in s 7(1A) for the RAC role, replaced by “with appropriate changes” - a difference that likely has no practical effect.

The Act also introduces a hierarchy of offices for remuneration purposes. When Stewart holds two paid Commonwealth offices at once, s 9(2) and (3) ensure he receives only the higher of the two salaries, not both. This prevents accumulation of public remuneration, though it also means he cannot top up a lower‑paid statutory role with a higher‑paid AAT Deputy President role unless the latter pays more.

Directly, the Act affects only one natural person: the Honourable Donald Gerard Stewart. It confers benefits and imposes conditions solely on him. No other person, whether individually or as a member of a class, has any right or obligation under this Act. The Act applies only if he has resigned his office as a Judge of the Supreme Court of New South Wales (s 4). If he had not resigned, the Act would be entirely inoperative. This makes the Act a condition‑dependent personal statute.

Indirectly, the Act affects the Commonwealth as the principal obligor. The Commonwealth must fund Stewart’s remuneration, pension entitlements, and long leave at rates pegged to judicial salaries, which are considerably higher than the standard remuneration for the heads of statutory agencies. Section 7(3) requires that during any period of long leave taken after his RAC term expires, he is paid at the rate payable to a NSW Supreme Court judge, not an ACT Supreme Court judge. This is a specific cost imposition on the Commonwealth budget.

The Act also affects the agencies that employ or host Stewart. The National Crime Authority must disregard the ordinary conditions of service for its Chairman set out in s 40 of the National Crime Authority Act 1984 and instead apply conditions modelled on those of an ACT Supreme Court judge. The Resource Assessment Commission must do likewise. The Administrative Appeals Tribunal must accept Stewart as a full‑time Deputy President even though he is not a judge, and must adjust his remuneration to avoid double payment. The Governor‑General is given a delegated power under s 5(b) to declare additional offices to which the rank and status provisions apply, by notice in the Gazette. This means the executive can extend the benefits of the Act to future roles without further legislation, albeit only for Stewart.

Taxpayers are indirectly affected because the Act preserves a stream of judicial pension and leave liabilities that would otherwise have ceased upon Stewart’s resignation from the NSW Supreme Court. The cost is concentrated on the Commonwealth’s superannuation and salary appropriations. Private individuals and businesses are not affected; the Act does not regulate any market activity, impose any compliance costs on firms, or alter any property or contractual rights. It is a pure transfer from the Commonwealth to one individual, justified by the stated policy of attracting a senior judge to a demanding statutory role without financial disadvantage.

The Act primarily confers rights on Stewart rather than duties. The key rights are: (1) the right to the same designation, rank, status, and precedence as an ACT Supreme Court judge during his tenure as NCA Chairman, RAC Chairperson, or any declared office (s 5); (2) the right to conditions of service (including leave) that are, with necessary changes, the same as those of an ACT Supreme Court judge, overriding the standard conditions in the National Crime Authority Act 1984 and the Resource Assessment Commission Act 1989 (s 7(1), (1A)); (3) the right to long leave calculated by aggregating service in his various judicial and statutory roles, deemed as service as an ACT Supreme Court judge, and paid at NSW Supreme Court judge salary rates (s 7(2), (3)); (4) the right to have his NCA and RAC service treated as judicial service for pension purposes under the Judges’ Pensions Act 1968, with the relevant salary pegged to that of a NSW Supreme Court judge (s 8(a), (aa), (b)); (5) the right to be appointed as a full‑time Deputy President of the AAT even while holding the NCA or RAC offices, notwithstanding any prohibition in the Administrative Appeals Tribunal Act 1975 (s 9(1)).

The Act also imposes conditions that limit otherwise absolute entitlements. Section 8(d) provides that if Stewart holds or performs the duties of a full‑time office under the Commonwealth after his retirement, pension is not payable under the Judges’ Pensions Act 1968 for that period. This is a suspension, not a forfeiture: the pension resumes when he ceases that full‑time office. Section 7(4) defers any entitlement to a lump‑sum long‑leave payment until he finally leaves Commonwealth service, and recalculates the amount based on the NSW Supreme Court judge salary at that later date. Section 9(2) and (3) impose a “no double‑dipping” rule: if Stewart holds both the NCA or RAC office and the AAT Deputy President role, he receives only the higher of the two salaries; the lower salary is effectively unpaid. These conditions reduce the fiscal cost to the Commonwealth but also mean Stewart cannot simply stack salaries.

No duties are imposed on Stewart beyond the implicit requirement to serve in the qualifying offices to receive the benefits. The Act does not require him to do or refrain from doing anything specific. It does not create any rights for third parties, such as the NCA, to demand that Stewart perform certain functions. His duties arise from the separate instruments of appointment, not from this Act.

This Act contains no penalty provisions. It does not create any criminal offences, civil penalties, or administrative sanctions. It does not confer any enforcement powers on any person or body. The only mechanism for upholding the rights it confers would be through ordinary legal proceedings if the Commonwealth failed to pay the required entitlements. Stewart could, for instance, sue the Commonwealth for breach of statutory duty or seek judicial review of a decision to deny benefits. The Act itself provides no express cause of action, but the common law would imply a right to recover sums due under a statute that plainly creates an entitlement.

Similarly, the Act does not impose any obligations that could be enforced against Stewart. There is no penalty if he fails to take long leave, or if he chooses to resign from a qualifying office early and forfeit certain benefits. The Act is structured as a facilitative framework: it ensures the Commonwealth can lawfully pay him judicial‑level benefits despite the standard legislative frameworks. If the Commonwealth pays him more than the Act allows - for example, if it pays him a pension while he is in full‑time Commonwealth employment contrary to s 8(d) - the overpayment could be recovered through common law restitution or debt recovery, but the Act itself does not prescribe a penalty.

The absence of penalties is consistent with the Act’s character as a private or personal statute. It is not a regulatory or criminal law. It does not protect any public interest beyond the efficient operation of the NCA and RAC by attracting a judge of Stewart’s standing. Enforcement is therefore entirely a matter of contract or administrative law, if and when a dispute arises. No such dispute is mentioned in the source text.

The Act explicitly overrides or modifies several Commonwealth statutes. Section 7(1) provides that the conditions of service for Stewart as NCA Chairman apply “Notwithstanding section 40 of the National Crime Authority Act 1984.” That provision would otherwise set the terms and conditions for the Chairman. Similarly, s 7(1A) overrides the Resource Assessment Commission Act 1989 for Stewart’s tenure as Chairperson. These override clauses mean that the general law is displaced for one person only; other Chairmen of the NCA or RAC remain subject to the standard legislation.

The Act extensively modifies the Judges’ Pensions Act 1968 for Stewart. Section 8 deems his NCA and RAC service to be “service as a Judge” (paras (a), (aa)), which is not the case under the unmodified Pensions Act because the NCA and RAC offices are not judicial. Section 8(b) deems the “appropriate current judicial salary” for Stewart to be the salary of a NSW Supreme Court judge, rather than the salary of a federal judge that would ordinarily apply under the Pensions Act. Section 8(c) deems him to be a judge who is to cease office upon reaching a particular age, tied to the expiry of his RAC appointment, for the purpose of the Pensions Act provisions on preserved benefits. Section 8(d) suspends his pension if he later holds a full‑time Commonwealth office. These modifications are entirely personal and do not affect the operation of the Judges’ Pensions Act 1968 for any other person.

The Act also modifies the Administrative Appeals Tribunal Act 1975. Section 9(1)(a) allows Stewart to be appointed as a full‑time Deputy President of the AAT despite holding the NCA office, and s 9(1)(c) allows him to continue as Deputy President despite holding the RAC office. This overrides any incompatibility of office provisions in the AAT Act. Section 9(1)(b) provides that if appointed, he receives the remuneration of a non‑judicial Deputy President, not the higher rate of a judicial Deputy President. Sections 9(2) and (3) then cap his total remuneration to the higher of his dual salaries.

The Act interacts with the Judges (Long Leave Payments) Act 1979 via s 7(4). It defers any payment under that Act until Stewart ceases to hold a full‑time Commonwealth office, excludes from qualifying service any period for which he has taken long leave after becoming entitled, and pegs the calculation to the NSW Supreme Court judge salary at the time he finally leaves Commonwealth service. This avoids a premature payout and reduces present value cost to the Commonwealth.

The definition of “office under the Commonwealth” in s 3 is broad and incorporates by reference the laws of territories other than the Northern Territory, plus various corporate and employment arrangements. This means that if Stewart takes a statutory office created by a territory law, a ministerial appointment, or a role in a government‑controlled company, that role could trigger the pension suspension in s 8(d) or the long‑leave deferral in s 7(4).

The source text provided does not include any amendment notes, tables, or history. The Act is headed “National Crime Authority (Status and Rights of Former Chairman) Act 1984” and includes references to the Resource Assessment Commission Act 1989 in s 5(aa), s 7(1A), s 7(2)(a), s 8(aa), and s 8(c)(i) and (ii). Since the RAC was established in 1989, five years after this Act received Royal Assent, the original 1984 Act could not have contained those references. This indicates that the Act was amended at some point after 1989 to extend its provisions to the RAC role. The source text also includes s 4 and s 5(aa) and s 7(1A) which refer to “Chairperson of the Resource Assessment Commission.” The separate section 7(2) on long leave appears to be a later addition, as it uses the same terminology.

However, the source does not provide any information about the amending Acts, the date of amendments, or the parliamentary history. The Act as reproduced may be a compilation from a later date. Without the amendment history, we cannot say whether other substantive changes occurred, such as the insertion of s 6 (which is missing from the source entirely) or the repeal of any provisions. The absence of s 6 in the numbering suggests either a drafting gap or a removed section; the source does not explain it. Therefore, the amendment history is not available from the supplied text. A practitioner would need to consult the Federal Register of Legislation to obtain the full amending history.

The source text does not mention any cases, judicial decisions, or litigation involving this Act. No court or tribunal proceedings are cited. This is not surprising given the Act applies only to one named individual and confers straightforward entitlements. Disputes over the interpretation of terms like “mutatis mutandis” or the calculation of pension entitlements could theoretically arise, but the source gives no indication that any such dispute has been litigated. It is possible that the Act was never challenged or that any disputes were settled administratively. Without external research, we cannot assert the existence of any litigation history. The Act appears to have operated as intended without generating recorded judicial contests.

Several provisions create traps or ambiguities. First, the application condition in s 4: the Act applies only if Stewart has resigned his office as a Judge of the Supreme Court of New South Wales. If he had been appointed as Chairman of the NCA while still holding the judgeship, the Act would have no effect, and his conditions of service would be governed by the National Crime Authority Act 1984 without the judicial‑equivalent benefits. The timing of resignation thus matters critically.

Second, the “mutatis mutandis” phrase in s 7(1) and the “with appropriate changes” phrase in s 7(1A) are not defined. While the ACT Supreme Court judge conditions can be identified, making the “necessary changes” from a judge to a statutory officeholder is not straightforward. For example, a judge cannot hold another full‑time office without judicial approval; Stewart’s statutory roles explicitly permit dual offices under s 9, so the “necessary changes” would need to reconcile that. The risk is that an administrator could interpret the “mutatis mutandis” requirement restrictively, denying benefits that a judge would receive but which were not explicitly extended by the other sections of this Act.

Third, the long‑leave aggregation in s 7(2)(b) deems Stewart’s service in multiple roles as service as an ACT Supreme Court judge, but s 7(2)(c) excludes periods for which he has received a payment under s 4 of the Judges (Long Leave Payments) Act 1979. That Act provides a lump‑sum payment in lieu of long leave on retirement or death. If Stewart received such a payment for any part of his NSW judicial service, that part cannot be used again to qualify for long leave under this Act. This prevents double‑counting but could reduce his actual leave entitlement if the earlier payment was small.

Fourth, the pension deferral in s 8(d) suspends the Judges’ Pensions Act pension during any period Stewart holds or performs the duties of a full‑time office under the Commonwealth. The definition of “office under the Commonwealth” in s 3 is extremely broad, covering appointments by a Minister, positions in government‑controlled companies, and even jobs in territory public services (excluding the Northern Territory). If Stewart accepted even a minor board appointment that the Governor‑General deemed a full‑time office, his pension would stop. This creates a disincentive against any further Commonwealth service after he retires.

Fifth, the remuneration‑offset provisions in s 9(2) and (3) are not indexed to inflation or salary reviews. They compare the “remuneration” from each office, but “remuneration” includes allowances (s 3). If one office later changes its allowance structure, the offset could result in Stewart receiving less than expected. The Act does not provide a mechanism for recalculating the offset if both salaries change.

Sixth, the Governor‑General’s power in s 5(b) to declare additional offices by Gazette notice is a delegated legislative power. It allows the executive to extend the rank‑and‑status benefit without parliamentary scrutiny. A future government could declare a low‑profile appointment to trigger the cascading pension and leave benefits, potentially increasing cost to taxpayers without legislative debate.

Compliance with this Act does not fall on Stewart as a set of obligations; instead, it falls on the Commonwealth agencies that administer his entitlements. The key compliance steps are administrative.

For the National Crime Authority and the Resource Assessment Commission (if still in existence; the RAC was abolished in 2012), they must ensure that Stewart’s salary, leave, and other conditions of service are set to be identical, with appropriate changes, to those of an ACT Supreme Court judge, despite the standard provisions in their enabling Acts. This requires a detailed comparison of the ACT judicial determination and the NCA/RAC employment frameworks, and the drafting of a bespoke determination for Stewart alone. Failure to apply the correct conditions could lead to underpayment or overpayment.

For the Department administering the Judges’ Pensions Act 1968, compliance involves several steps. First, it must record Stewart’s NCA and RAC service as “service as a Judge” for pension accrual purposes. Second, it must calculate the “appropriate current judicial salary” by reference to the salary of a NSW Supreme Court judge, not a federal judge. Third, it must apply the deeming provisions in s 8(c) to treat him as a judge who is to cease office at the end of his RAC appointment, for the purpose of preserved benefits. Fourth, it must suspend pension payments if Stewart later holds a full‑time Commonwealth office (s 8(d)). Fifth, it must defer any lump‑sum long‑leave payment under the Judges (Long Leave Payments) Act 1979 until he holds no full‑time Commonwealth office, and recalculate the amount using the NSW Supreme Court judge salary at cessation.

For the Administrative Appeals Tribunal, if Stewart is appointed as a full‑time Deputy President, the Tribunal must accept the appointment even though he is not a judge and holds other statutory offices. It must pay him at the rate for a non‑judicial Deputy President. If he also holds a qualifying office under this Act, the Tribunal must calculate whether its salary is lower than the other office’s remuneration; if so, it pays nothing; if higher, it pays the excess only. The Tribunal must also ensure that the appointment complies with s 9(1) notwithstanding any other provision of the AAT Act.

For the Department of Finance or the paying agency, compliance involves tracking Stewart’s employment status over time to ensure pension suspensions and long‑leave deferrals are correctly applied. The broad definition of “office under the Commonwealth” means that even a contract role or a directorship could trigger suspension, so continuous monitoring is required. Finally, if Stewart holds multiple offices, the agency must determine which office pays the higher “remuneration” (including allowances) and pay only that amount, apportioning the nil amount to the lower‑paid office.

There is no public compliance requirement; the Act does not require reporting, audits, or publication. It is a purely internal administrative matter for the Commonwealth. Stewart himself has no active compliance duties; he need only not hold a full‑time Commonwealth office after retirement if he wants to receive his pension without interruption.