Remuneration and Allowances Act 1990

The central concept is that of a statutory salary rate fixed by the Act itself, rather than by the Remuneration Tribunal’s ordinary Determination process. The Act does not set a single rate; rather, it uses Schedules that name specific offices and assign dollar figures or reference formulas. The key concept of an “office holder” is defined implicitly by the offices listed in each Schedule. Schedule 1 covers judicial offices (High Court, Federal Court, Federal Circuit and Family Court of Australia Division 1, Supreme Court of the Australian Capital Territory), tribunal presidents (Administrative Appeals Tribunal, Australian Competition Tribunal, Law Reform Commission), the Solicitor-General, the Master of the ACT Supreme Court, and members of the former Australian Industrial Relations Commission (President, Deputy President, Commissioner). Schedule 2 covers secretaries of Departments of State (with a basic rate and higher rates for Defence, Prime Minister and Cabinet, and Treasury), secretaries of Parliamentary Departments (Clerk of the Senate and Clerk of the House of Representatives), and a long list of full-time public offices (including Chief of the Defence Force, Director of Public Prosecutions, Auditor-General, Commissioner of Taxation, Commonwealth Ombudsman, and many others). The Act also uses the concept of a “wage adjustment” mechanism. For Schedule 1, clause 6 provides that the rates specified in clause 2 are to be adjusted in accordance with safety net review decisions relating to allowances made by the Australian Industrial Relations Commission after commencement. For Schedule 2, clause 4 provides that the rates in clause 3 are to be adjusted in accordance with wage-setting decisions of the Australian Fair Pay Commission, or, if that Commission has not yet made its first decision, the Statement of Principles from the AIRC’s 2005 Safety Net Review Decision. The Act also creates concepts of additional remuneration: a judge who also holds certain extra offices (Aboriginal Land Commissioner, Chairperson of the Australian Electoral Commission, Chief Judge of the Supreme Court of Norfolk Island, President of the AAT, President of the Law Reform Commission, or President of the Australian Competition Tribunal) receives $750 per annum on top of the judicial salary. There is a High Court Canberra allowance of $16,524 per annum payable from 5 December 1989 to the Chief Justice and Justices who do not establish their place of residence in Canberra. Travelling allowance is tied by reference to specific Remuneration Tribunal Determinations (No. 3 of 1990, No. 18 of 1989, and Part 4 of Determination No. 2 of 1990). Annual leave loading is payable to the Master of the ACT Supreme Court and to Commissioners of the Australian Industrial Relations Commission (Schedule 1, clause 7) and to secretaries and full-time public office holders (Schedule 2, clause 5) on the same terms as persons engaged under the Public Service Act 1999. A district allowance is provided for Schedule 2 office holders located in classified regions.

The Act directly affects the holders of the offices listed in Schedules 1 and 2. These are high-level Commonwealth roles. Under Schedule 1, the affected judicial officers are: the Chief Justice and Justices of the High Court of Australia; the Chief Justice, judges, and the Senior Judge of the Federal Court of Australia; the Chief Justice, Deputy Chief Justice, Senior Judge, and any other judge of the Federal Circuit and Family Court of Australia (Division 1); the Chief Justice and judges of the Supreme Court of the Australian Capital Territory; the Master of the Supreme Court of the Australian Capital Territory; the President of the Administrative Appeals Tribunal; the President of the Australian Competition Tribunal; the President of the Law Reform Commission; the Solicitor-General; and the President, Deputy Presidents, and Commissioners of the Australian Industrial Relations Commission (though that body has since been replaced by the Fair Work Commission). Additional remuneration provisions affect judges who also hold specific extra offices (Aboriginal Land Commissioner, etc.). The High Court Canberra allowance affects only the Chief Justice and Justices of the High Court who do not reside in Canberra. Under Schedule 2, the Act affects the secretaries of all Departments of State listed (with differential rates), including Defence, Prime Minister and Cabinet, Treasury, and a list of 15 others at a standard higher rate, plus the basic rate for any other department secretary. It also affects the Clerk of the Senate and the Clerk of the House of Representatives. The long list of full-time public offices includes the Chief of the Defence Force, Managing Director of the Australian Broadcasting Corporation, Director of Public Prosecutions, Auditor-General, Commissioner of Taxation, Commonwealth Ombudsman, First Parliamentary Counsel, and many others (approximately 40 named positions, with some at $126,848, some at $124,367, $120,100, $117,258, $111,004, $99,949, $92,333, and $82,333). The Act also indirectly affects the Remuneration Tribunal, because it constrains the Tribunal’s power over these offices: the Tribunal cannot make a Determination inconsistent with the Act before 1 June 1990, and later inconsistent Determinations can override the Act but are subject to parliamentary disapproval. The Act’s appropriation provision affects the Commonwealth’s financial administration - the Consolidated Revenue Fund is appropriated for these salaries and allowances. The wage adjustment clauses affect how the rates are updated, referencing decisions of the Australian Fair Pay Commission or the AIRC.

The Act primarily confers rights to remuneration and allowances, rather than imposing duties on office holders. The central right is the entitlement to salary at the rates specified in the Schedules. For example, the Chief Justice of the High Court is entitled to $170,503 per annum from 1 July 1990 and $180,733 from 1 January 1991 (Schedule 1, Part 1). A Justice is entitled to $154,991 and $164,290 respectively. Under Schedule 1, Part 2, the Chief Justice of the Federal Court receives $143,789 from 1 July 1990 and $152,416 from 1 January 1991. The same rates apply to the Chief Justice of the Federal Circuit and Family Court Division 1. Additional remuneration rights: a judge who is also Aboriginal Land Commissioner, Chairperson of the Australian Electoral Commission, Chief Judge of the Supreme Court of Norfolk Island, President of the Administrative Appeals Tribunal, President of the Law Reform Commission, or President of the Australian Competition Tribunal receives an extra $750 per annum (Schedule 1, clause 3). The High Court Canberra allowance: an allowance at $16,524 per annum from 5 December 1989 is payable to the Chief Justice and Justices who do not establish residence in Canberra (clause 4). Travelling allowance rights: the rates and conditions for Schedule 1 Part 1 and Part 2 offices, plus specified presidents and Deputy Presidents, are as determined in Determination No. 3 of 1990; for Commissioners of the Australian Industrial Relations Commission, as per Determination No. 18 of 1989; for other office holders, as per clause 4.1 of Part 4 of Determination No. 2 of 1990 (clause 5). Wage adjustment rights: the salary rates in Schedule 1 clause 2 are to be adjusted in accordance with safety net review decisions relating to allowances made by the AIRC after commencement (clause 6). Annual leave loading: payable to the Master of the ACT Supreme Court and to Commissioners of the AIRC on the same terms as Public Service Act 1999 employees (clause 7). For Schedule 2 office holders, secretaries and full-time public office holders have rights to salary at the listed rates (Part 1, 2, 3), with adjustments under clause 4 (wage-setting decisions of the Australian Fair Pay Commission or AIRC Statement of Principles). They have rights to annual leave loading on the same terms as Public Service Act employees (clause 5). District allowance rights: if the office is located in a classified region, the holder is paid district allowance at the rates and conditions for APS officers (clause 6). Travelling allowance rights for Schedule 2 offices: as determined in Part 4 of Determination No. 2 of 1990 and Part 1 of Determination No. 18 of 1989 of the Remuneration Tribunal (clause 7). The Act also confers a right to be paid from the Consolidated Revenue Fund (section 8). There is a duty (or more precisely, an obligation on the Commonwealth) to pay these amounts. Office holders have no express duties under the Act, but they must comply with the conditions attached to allowances (e.g., for district allowance, the region must be classified). The Act does not impose any reporting or conduct obligations.

The Act contains no express penalty provisions. No offence is created for non-payment, and no civil penalty is specified. Enforcement of the entitlement to remuneration and allowances would likely occur through standard legal mechanisms: an office holder could bring an action against the Commonwealth for breach of statutory duty to recover unpaid salary or allowances. Section 8 provides that the salaries, allowances and contributions payable under the Act are to be paid out of the Consolidated Revenue Fund, which is appropriated accordingly. This provision ensures that the funds are legally available for payment; it does not itself create a private right of action, but it underpins the obligation to pay. The Act’s enforcement is therefore indirect. If the Commonwealth fails to pay the correct rate, the office holder could seek declaratory or monetary relief. The absence of penalty provisions means there is no specific deterrence beyond the ordinary law of obligations. Additionally, the Act’s interaction with the Remuneration Tribunal may have enforcement implications: if a later Tribunal Determination overrides the Act under section 3(2) and then the Parliament disapproves under section 3(4), the Act’s provision revives from the date of the resolution. If there is a period of non-compliance during the gap, recovery would depend on whether the Determination was actually operative. The Act does not prescribe interest on late payments. The regulation-making power in section 8A could potentially be used to create enforcement mechanisms or prescribing matters for carrying out the Act, but the source text does not indicate that any such regulations have been made for enforcement. The wage adjustment clauses (Schedule 1 clause 6, Schedule 2 clause 4) rely on external decisions (AIRC safety net decisions or Australian Fair Pay Commission decisions). If those bodies fail to make decisions, the Act provides a fallback for Schedule 2 (the AIRC 2005 Statement of Principles) but no fallback for Schedule 1 beyond “decisions relating to allowances.” Enforcement of the adjustment mechanism may be problematic if the external decision-making body is inactive or its decisions are not directly applicable. However, the Act does not set a deadline for adjustment; it merely states that rates “are to be adjusted” in accordance with those decisions. The precise mechanism for implementing the adjustment is left unspecified. Overall, the Act is a statutory entitlement statute with no bespoke enforcement apparatus; reliance is on general Commonwealth law.

The Act is expressly designed to interact with the Remuneration Tribunal’s powers. Section 3(1)(a) provides that Part 2 has effect despite any Determination of the Remuneration Tribunal made on or before 1 June 1990. This means that for the offices covered, the Act displaces any earlier Tribunal Determination. Section 3(1)(b) provides that Part 2 has effect despite any provision of an Act that would otherwise leave remuneration to the Tribunal, specifically including section 21 of the Workplace Relations Act 1996. This overrides that provision to the extent of inconsistency. Section 3(1)(c) overrides any inconsistent provision in the Judicial and Statutory Officers (Remuneration and Allowances) Act 1984. However, the interaction is not one-way. Section 3(2) permits a later Determination (made after 1 June 1990) that is inconsistent with the Act to operate according to its terms in spite of the Act, and the Act’s provision ceases to operate. So the Tribunal’s later Determinations can displace the Act, subject to the parliamentary disapproval mechanism under section 3(4). That mechanism is tied to subsection 7(8) of the Remuneration Tribunal Act 1973, which provides for resolutions disapproving of Determinations. Section 3A specifically nullifies one Determination: Determination No. 12 of 1994 - that Determination does not operate from the commencement of section 3A. The Act also interacts with the Public Service Act 1999. The annual leave loading provisions in Schedule 1 clause 7 and Schedule 2 clause 5 state that the loading is payable on the same terms and conditions applying to persons engaged under the Public Service Act 1999. This incorporates by reference the relevant terms of that Act and any applicable enterprise agreements or awards. The travelling allowance provisions in the Schedules refer to specific Remuneration Tribunal Determinations (No. 3 of 1990, No. 18 of 1989, and Part 4 of Determination No. 2 of 1990). The Act does not reproduce the terms; it simply provides that rates and conditions are as determined in those instruments. This means the content of those Determinations forms part of the operative law for those office holders. The wage adjustment mechanisms refer to decisions of the Australian Industrial Relations Commission (Schedule 1 clause 6) and the Australian Fair Pay Commission (Schedule 2 clause 4). These are external statutory bodies whose decisions are incorporated by reference. For Schedule 2, if the Australian Fair Pay Commission has not yet made its first wage-setting decision, the fallback is the AIRC’s Statement of Principles in its 2005 Safety Net Review Decision. The district allowance provision (Schedule 2 clause 6) incorporates rates and conditions prescribed for officers of the Australian Public Service, which likely derives from regulations or determinations under the Public Service Act. The Act’s appropriation provision (section 8) interacts with the financial framework of the Commonwealth, specifically the Consolidated Revenue Fund. The regulation-making power (section 8A) allows the Governor-General to make regulations on matters required or permitted by the Act or necessary for its execution, which could affect interactions with other laws.

The source text does not include a formal amendment history note, but internal evidence indicates that the Act has been amended since its original enactment in 1990. The Schedules refer to offices that did not exist at that time, such as the “Federal Circuit and Family Court of Australia (Division 1)”, which was created by the Federal Circuit and Family Court of Australia Act 2021. This means the Schedules have been updated to substitute references to former courts (e.g., the Family Court of Australia and the Federal Circuit Court) with the new consolidated court. Similarly, the reference to the “Australian Industrial Relations Commission” (AIRC) is now historical; that body was replaced by Fair Work Australia in 2010 and later the Fair Work Commission. The Act retains the old name, suggesting either that the reference has not been updated, or that the amendment history has preserved the original terminology for certain provisions. Section 3A was inserted at some point to nullify Determination No. 12 of 1994, which indicates a specific amendment to address a particular Tribunal action. The wage adjustment clause for Schedule 2 refers to the “Australian Fair Pay Commission” and the “2005 Safety Net Review Decision”, which points to amendments made after 2005, likely through the Workplace Relations Amendment (Work Choices) Act 2005 and subsequent legislation. The original Act would have referenced only the AIRC. The rates in the Schedules are expressed in dollar amounts from 1990 and 1991, so those figures have not been automatically updated; adjustments occur through wage decisions. The Act has also been amended to add and remove offices. For example, the list of Secretaries of Departments in Schedule 2 Part 1 includes departments that have since been renamed or abolished (e.g., Department of Administrative Services, Department of the Arts, Sport, the Environment, Tourism and Territories). The inclusion of the “Royal Commissioner, Royal Commission into Aboriginal Deaths in Custody” at $120,100 suggests an amendment to include that specific office while the commission was operative. The absence of a formal amendment list in the source means that a full chronology of amendments is not provided, but the text clearly reflects multiple layers of amendment, some of which are incomplete (e.g., retaining “Australian Industrial Relations Commission” for travelling allowance while using “Australian Fair Pay Commission” for wage adjustments).

The source text provided contains no references to any court cases, litigation history, or judicial consideration of the Act. The user has instructed that only cases named in the source may be cited. Accordingly, there is no litigation history to report from the text. It is possible that the Act has been considered in litigation concerning remuneration entitlements, but the source does not mention any such cases. The Act’s provisions on parliamentary disapproval (section 3(4)) and the nullification of Determination No. 12 of 1994 (section 3A) suggest that there may have been political or administrative controversy, but no court cases are referenced. The absence of litigation history in the source does not mean that no cases exist, but this deep dive cannot speculate. The Act itself does not create any specific right of review, appeal, or compensation, which might explain limited direct litigation. Disputes about salary adjustments or allowances could have been litigated under general administrative law (e.g., judicial review of decisions under the Remuneration Tribunal Act 1973 or the Public Service Act 1999), but the source does not provide that context. Therefore, the litigation history section must state that the source contains no information on this topic.

Several nuances in the Act could trap an unwary reader. First, the relationship between the Act and later Remuneration Tribunal Determinations under section 3(2) is subtle: a later inconsistent Determination will override the Act and cause the Act’s provision to “cease to operate”. This is not a repeal; the Act’s provision is merely suspended as long as the Determination operates. If the Determination is later disapproved by Parliament under section 3(4), the Act’s provision “operates with effect from the day on which the resolution is passed.” This means there could be a period between the Determination’s commencement and the resolution when the Act’s rate is not operative and the Determination’s rate applies. Office holders and administrators must monitor both the Act and the Tribunal’s Determinations. Second, section 3(3) imposes a restriction on retrospective Determinations: if a Determination purports to take effect before 1 June 1990, it is deemed to take effect on 1 June 1990, not earlier. This prevents backdating before a certain date. Third, section 3A nullifies Determination No. 12 of 1994 entirely. Anyone relying on that Determination for any purpose after the commencement of section 3A would be wrong. Fourth, the wage adjustment clauses are imprecise. Schedule 1 clause 6 says rates “are to be adjusted in accordance with safety net review decisions relating to allowances made by the Australian Industrial Relations Commission after the commencement of this Act.” It does not specify whether the adjustment is mandatory or automatic; it does not set a timeframe; and the AIRC no longer exists. The practical effect may be that no adjustment has occurred for many years, leaving the dollar figures frozen at 1990-1991 levels (subject to later amendments not shown). Schedule 2 clause 4 has a similar issue: it refers to the Australian Fair Pay Commission, which also no longer exists (replaced by the Fair Work Commission in 2009). The fallback to the AIRC’s 2005 Safety Net Review Decision may be of limited utility after 2005. Fifth, the annual leave loading provisions incorporate the Public Service Act 1999 terms “on the same terms and conditions applying to persons engaged under the Public Service Act 1999.” This is a floating reference; the content may change over time without amendment to the Act. Sixth, the district allowance provision (Schedule 2 clause 6) refers to “rates and conditions prescribed for officers of the Australian Public Service.” This incorporates external administrative instruments that may not be readily known to the office holder. Seventh, the travelling allowance provisions refer to specific Determination numbers (No. 3 of 1990, No. 18 of 1989, Part 4 of Determination No. 2 of 1990). If those Determinations have been superseded or revoked, the reference may be outdated. The Act does not provide a default if those Determinations are no longer in force. Eighth, the list of offices in the Schedules may not be comprehensive; some offices have “Remuneration as determined” (e.g., Chief Executive of CSIRO), meaning the Act does not set a dollar figure for that office. Ninth, the High Court Canberra allowance is payable only to those who “do not establish their places of residence in Canberra.” The Act does not define “establish” or what constitutes residency for this purpose, potentially causing disputes.

Compliance with the Remuneration and Allowances Act 1990 is primarily the responsibility of the Commonwealth (through the Department of Finance and relevant portfolio agencies) to ensure that the correct rates of salary and allowances are paid to the office holders covered by the Schedules. The first step is to identify whether a particular office is listed in Schedule 1 or Schedule 2, and at what rate. For offices with specific dollar amounts (e.g., Chief Justice of the High Court: $170,503 from 1.7.90, $180,733 from 1.1.91), the paying authority must apply those figures as adjusted by the relevant wage adjustment mechanism. However, the mechanism is currently ambiguous because the bodies referenced (AIRC for Schedule 1, Australian Fair Pay Commission for Schedule 2) no longer exist. In practice, the Commonwealth would need to determine whether any adjustment has occurred historically and, if not, whether the original rates still apply. For offices covered by a later inconsistent Remuneration Tribunal Determination (section 3(2)), the paying authority must apply the Tribunal’s Determination instead of the Act’s rate, unless and until Parliament disapproves the Determination. This requires ongoing monitoring of both the Remuneration Tribunal’s Determinations and any parliamentary resolutions. The nullified Determination No. 12 of 1994 must not be applied. For additional remuneration ($750 per annum for judges holding extra offices), the paying authority must verify that the office holder actually holds one of the listed additional offices (Aboriginal Land Commissioner, etc.) and pay the additional amount accordingly. The High Court Canberra allowance ($16,524 per annum) requires a determination of whether the Chief Justice or Justice has established a place of residence in Canberra. The Act does not prescribe a test; the paying authority should adopt a consistent administrative interpretation (e.g., principal place of residence, registration for electoral purposes). Travelling allowance must be paid according to the specific Remuneration Tribunal Determinations referenced (No. 3 of 1990, No. 18 of 1989, Part 4 of Determination No. 2 of 1990). If those Determinations are no longer current, the payer may need to ascertain applicable rates from the Remuneration Tribunal or seek legal advice. Annual leave loading must be paid on the same terms and conditions as for employees under the Public Service Act 1999. The payroll system should incorporate those terms by reference. District allowance (Schedule 2 clause 6) requires classification of the office location under the APS district allowance framework. The paying authority must apply the appropriate rate. For offices where the Schedule states “Remuneration as determined” (e.g., CSIRO Chief Executive), the remuneration is not set by the Act; the paying authority must rely on the separate Determination referenced (No. 1 of 1990 or later). All payments are to be made from the Consolidated Revenue Fund (section 8). The paying authority should ensure that the appropriation is properly recorded as an expenditure of appropriated funds. The regulation-making power (section 8A) could be used to prescribe matters for compliance, but no regulations are mentioned in the source. Administrators should also maintain records of any relevant Tribunal Determinations that may override the Act, and track parliamentary disapproval resolutions. For office holders, compliance means ensuring they receive their correct entitlements and, if they believe there is an error, raising it with the paying authority. They may also need to provide information to establish eligibility for allowances (e.g., residence for High Court allowance, location for district allowance).