Statutory and Other Offices Remuneration Act 1975

The Act’s reach is delineated by the four Schedules.

Schedule 1 lists offices whose holders enjoy statutory protection against any reduction in remuneration (s 21(1)). It includes the Governor, Chief Justice, President of the Court of Appeal, all Supreme Court and District Court judges, the President and Vice-President of the Industrial Relations Commission, the Chief Judge and other judges of the Local Court, the Auditor-General, Electoral Commissioner, Ombudsman, Director of Public Prosecutions, Privacy Commissioner, Information Commissioner, Public Service Commissioner, Independent Review Officer under the Personal Injury Commission Act 2020, and the Health Care Complaints Commissioner, among others. Acting judges and certain full-time commissioners are also covered.

Schedule 2 is divided into two parts. Part 1 covers offices such as the Valuer-General, Solicitor General, Senior Public Defender, Commissioner of Corrective Services, full-time members of the Land and Environment Court, President and Deputy President of the Personal Injury Commission, Crown Prosecutors, full-time members of the Independent Pricing and Regulatory Tribunal, Mental Health Commissioners and the Small Business Commissioner. Part 2 lists parliamentary officers (Clerks of the Legislative Assembly and Legislative Council, Parliamentary Budget Officer) and certain other full-time statutory roles. Remuneration under the Act is payable to the holder of a Schedule 2 office only if the person is required to devote the whole of their time to the duties of the office (s 11(2)(b)).

Schedule 3 is likewise split. Part 1 deals with members of the Law Reform Commission who are not judicial officers and who are required to work full-time. Part 2 covers appointed members of the Independent Liquor and Gaming Authority, the Chief Commissioner and Commissioners of the NSW Independent Casino Commission. Again, remuneration is conditional on the identity of the holder or on full-time devotion to duty (s 11(2)(a)).

Part 3A executives are chief executive and senior executive office holders under the preserved Public Sector Employment and Management Act 2002 provisions. Part 3B senior executives are Secretaries and other Public Service senior executives under the Government Sector Employment Act 2013, NSW Police Force senior executives, NSW Health Service senior executives and Transport Service senior executives (including the Commissioner of Police from a specified date).

Excluded offices are listed in Schedule 4: the Tribunal itself, the Parliamentary Remuneration Tribunal, Ministers, Executive Councillors, certain offices under the Parliamentary Remuneration Tribunal Act 1975, the Chief Judge of the District Court, ICAC Commissioners and judicial members of the Industrial Relations Commission.

The Act therefore directly affects several hundred individuals at any one time—judges, tribunal members, statutory officers, parliamentary officers and the most senior public servants—plus any prospective appointees whose packages are determined in advance (ss 24B(3), 24N(2)).

Tribunal duties

• Must make annual determinations for Part 3 office holders (s 13), Part 3A executives (s 24C) and Part 3B bands (s 24O).
• Must give effect to any government policy declared by regulation when determining executive packages (s 6AA) or Part 3 remuneration (s 6AB).
• Must be assisted by, and take into account the views of, the two assessors (s 7(2)). The second assessor is disqualified from participating in any matter concerning their own office (s 7(2A)).
• May conduct inquiries, receive submissions and inform itself as it thinks fit; is not bound by evidence rules (s 17, s 24G, s 24S).
• Must report every determination to the Minister within statutory timeframes (ss 18, 24H, 24T).

Office holder rights

• Entitlement to the salary and allowances (or package) fixed by a current determination (s 11(1), s 24J).
• Protection against reduction for Schedule 1 holders (s 21(1)).
• Right to elect salary sacrifice for motor vehicles, superannuation or living-away-from-home expenses (ss 11B, 11C) or, if nominated, total employment cost packaging (s 11A).
• Entitlement to continuation of the previous year’s remuneration until a new annual determination is published (ss 22, 24K, 24W).
• For certain offices, remuneration is payable only if the holder is the named person or works full-time (ss 11(2), 23(3)).

Ministerial powers

• Power to direct special determinations (ss 14, 24D, 24P).
• Power to declare government policy by regulation that binds the Tribunal (ss 6AA, 6AB).
• Approval role for salary sacrifice elections and certain nominations (ss 11A, 11B, 11C).
• Power to fix remuneration where no determination applies (ss 23, 24L).

Parliamentary rights

• Either House may disallow a determination by resolution (s 19A). Disallowance either restores the previous rates (for annual or wages-based determinations) or voids the determination (for special determinations).

The Act is not primarily a penal statute. It contains no offence-creating provisions or direct monetary penalties. Enforcement is achieved through:

• Civil consequences: A determination that has been disallowed ceases to have effect or is deemed never to have altered prior rates (s 19A(2)). Remuneration paid in accordance with a later-disallowed determination is not recoverable for past periods (s 19A(3)).
• Invalidity protection: Determinations “may not be challenged, reviewed, quashed or called into question” in any court or by prerogative writ (s 20(5), s 24J(4)). This ouster clause substantially limits judicial enforcement options.
• Administrative sanctions: The Tribunal member or assessor vacates office upon bankruptcy, conviction of a serious offence, mental incapacity or resignation (s 8). The Governor may remove them for any sufficient cause (s 8(2)).
• Budgetary controls: Remuneration for Schedule 1 holders is paid from the Consolidated Fund (s 11(3)), with specific exceptions (e.g. Independent Review Officer funded from compensation schemes). Unauthorised payments would therefore breach appropriations law.
• Policy compliance: Failure by the Tribunal to apply a declared government policy under ss 6AA or 6AB would render the determination ultra vires the amended statutory mandate, although the ouster clause makes this difficult to litigate.

The Act’s enforcement therefore relies on parliamentary disallowance, executive removal powers, and the ordinary accountability mechanisms that apply to statutory office holders.

The Act is designed to prevail over inconsistent remuneration provisions in other statutes (s 24). It interacts with:

• Government Sector Employment Act 2013 and its predecessor: supplies definitions of “head of a Public Service agency”, “Public Service senior executive” and the mechanism for employment benefits (ss 10A, 11A, 11B, 24AA, 24M). Part 3B determinations feed directly into band ranges used in employment contracts under that Act.
• Industrial Relations Act 1996: “wages decisions” of the Commission trigger or inform Tribunal determinations (definition in s 4(1), ss 15, 15A, 23A).
• Judicial Officers Act 1986: supplies the definition of “judicial officer” used to exclude them from employment benefits packaging (s 10A, s 11A) and to identify certain travelling allowance rights.
• Parliamentary Remuneration Tribunal Act 1975: offices listed in its Schedule 1 are excluded from this Act (Schedule 4). The same person may hold the three Tribunals (s 6(3)).
• Specific Acts governing listed offices (e.g. Independent Commission Against Corruption Act 1984, Health Care Complaints Act 1993, Personal Injury Commission Act 2020) are overridden as to quantum of remuneration but continue to govern appointment, tenure and functions.
• Subordinate Legislation Act 1989: special dispensations from consultation and staged repeal requirements have been given for certain regulations made under this Act (Schedule 6 cl 5, cl 6).

The Act also preserves earlier transitional arrangements from the Constitution Amendment (Governor’s Salary) Act 2003 and the 2001 amending Act (Schedule 6 Parts 2 and 3).

The most significant recent amendments are:

• Statutory and Other Offices Remuneration Amendment Act 2023 (assented 2023 No 8): inserted s 6AA(1A) and amended s 6AA to extend the obligation to give effect to declared government policy to determinations under Part 3B. It also converted a schedule of the amending Act into a regulation (Schedule 6 cl 6), bypassing normal subordinate legislation procedures. The change ensures wage policy discipline applies uniformly to all senior executives.
• 2025 amendments (2025 No 61, Sch 2.82): updated cross-references to reflect changes in court and tribunal nomenclature (e.g. Local Court, Personal Injury Commission). These are technical but illustrate the Act’s need for constant alignment with machinery-of-government reforms.
• Government Sector Employment Legislation Amendment Act 2016 (No 2): inserted Part 3B and expanded the definition of “senior executive” to include police, health and transport executives. The purpose was to bring all senior public sector leaders under a single, band-based remuneration framework following the creation of the Government Sector Employment Act.
• 2013 amendments (2013 No 29 and 2013 No 40): introduced s 6AB (policy binding for Part 3), clarified assessor qualifications, and restructured the heading and definitions to separate judicial from executive remuneration streams. These changes responded to concerns that the Tribunal was not sufficiently responsive to fiscal policy.

The trend has been toward greater executive control over the policy parameters within which the Tribunal operates, while preserving the formal independence of the determination process.

The Act’s broad ouster clauses (s 20(5), s 24J(4)) have largely prevented direct judicial review of determinations. No reported case has successfully quashed a Tribunal determination on substantive grounds.

Controversies have instead played out politically or through disallowance motions. In the 1980s and 1990s several Tribunal reports increasing judicial salaries attracted parliamentary criticism during periods of public sector wage restraint. The insertion of ss 6AA and 6AB was a direct legislative response to perceptions that the Tribunal was insufficiently attentive to government wages policy.

A recurring issue has been the interaction with judicial independence. Schedule 1 offices include all superior court judges. Section 21’s prohibition on reduction of remuneration is a statutory echo of the constitutional principle that judicial salaries may not be diminished during tenure. Any attempt to use the disallowance mechanism to cut judicial pay would raise serious constitutional questions under the Constitution Act 1902 (NSW) and the implied constitutional doctrine recognised in Kable v Director of Public Prosecutions (NSW) and federal cases such as Commonwealth v Commonwealth Court of Conciliation and Arbitration.

The 2003 amendment to the Governor’s salary (Schedule 6 Part 3) was controversial because it allowed a retrospective determination. Although the Tribunal was required to act “as soon as practicable”, the power to back-date remuneration for the Vice-Regal office attracted comment about transparency.

In recent years the mandatory application of declared government policy has been criticised by some as undermining the Tribunal’s independence, particularly when the policy imposes wage freezes or caps that apply to senior executives but not to judges (who remain protected by s 21 and the note to s 6AB).

Most practitioners assume that once the Tribunal publishes a determination in the Gazette it is immune from change. That is not quite right. A subsequent special determination under s 14 or s 24D can alter it before the next annual cycle, and parliamentary disallowance remains available for 15 sitting days after tabling (s 19A(1)(b)). The disallowance effect differs according to the type of determination (s 19A(2)).

Another trap is the conditional entitlement in ss 11(2) and 23(3). Many Schedule 2 and 3 offices only attract remuneration under the Act if the holder is required to work full-time or is the specific person named in Column 2 of Schedule 3 Part 1. Part-time or ex officio holders may fall outside the Act and be remunerated (or not) under their primary statute.

The interaction between salary sacrifice (ss 11B, 11C) and the “single amount” packaging under s 11A is subtle. An office holder cannot simultaneously use both regimes; nomination under s 11A removes the person from the s 11B/11C cohort. The cost of benefits is calculated by reference to the Government Sector Employment Act 2013 Secretary-level equivalents, not actual cost—an often-overlooked point when advising on net remuneration.

Section 6AB(4) extends the policy-binding rule to inquiries already on foot. A regulation declaring a new wages policy can therefore change the rules mid-inquiry unless the regulation expressly provides otherwise. This retroactive effect is rarely appreciated.

Finally, the ouster clause does not prevent proceedings that allege a determination was procured by fraud or jurisdictional error of the most fundamental kind (Plaintiff S157/2002 v Commonwealth principles still apply). However, the practical utility of such litigation is virtually nil given the broad discretion conferred on the Tribunal and the requirement that it “give effect to” declared policy.

For the Tribunal

• Schedule every annual determination process to commence no earlier than 1 January (s 17(2), s 24G(2), s 24S(2)).
• Ensure two assessors are appointed and that the second assessor is independent except for permitted State-service exceptions (s 7).
• Before making any executive or Part 3 determination, check the current regulations for declared government policy and apply it (ss 6AA, 6AB).
• Record in writing the matters taken into account, including submissions received and assessor views.
• Deliver reports within statutory deadlines and ensure Gazette publication occurs promptly.

For Ministers and agencies

• Use the direction power under ss 14, 24D and 24P sparingly and only when a clear policy need exists; specify the matters the Tribunal must consider.
• Before nominating an office holder for employment benefits packaging, obtain the office holder’s consent where Schedule 1 is involved (s 11A(6)).
• When approving salary sacrifice elections, calculate the reduction by reference to the exact cost determined under the Government Sector Employment Act 2013 or by the Secretary of the Department of Justice (ss 11B(3)(c), 11C(3)(c)).
• Monitor the 15 sitting-day disallowance window after each tabling.

For office holders and their advisers

• Check the current Gazette for the latest determination before calculating taxable income or superannuation contributions.
• If considering salary sacrifice, lodge the election in writing with the Minister and obtain approval before any benefit is provided.
• Schedule 1 holders should be aware that their remuneration cannot be reduced by determination, but parliamentary disallowance could still operate indirectly.
• Where an office appears in both Schedule 2 and another statute, confirm whether the holder is required to work full-time; if not, remuneration may be payable under the other statute or not at all.
• Keep records of election and revocation dates; revocations do not operate retrospectively.

For parliamentary officers

• Ensure every Tribunal report is tabled within 14 sitting days and that notice of any disallowance motion is given within the 15-day window.
• Note that failure to table does not invalidate the determination but the obligation remains (s 19(2)).

Compliance ultimately turns on meticulous calendar management, continual monitoring of declared government policy regulations, and strict adherence to the procedural sequencing set out in Parts 3, 3A and 3B. Because the Act interfaces with almost every major public sector employment statute, a change in any one of those statutes usually requires a consequential amendment here. Practitioners should therefore treat the Act as living legislation whose Schedules and cross-references must be checked in every new appointment or remuneration review.