104APension entitlements of Associate Judges, their partners and children

104A Pension entitlements of Associate Judges, their partners and children S. 104A(1) amended by No. 24/2008 s. 29(2)(a)(i). (1) An Associate Judge who— S. 104(1)(a) substituted by No. 22/1995 s. 20(2). (a) has attained— (i) the age of 65 years; or S. 104A (1)(a)(ii) amended by No. 24/2008 s. 29(2)(a)(ii). (ii) in the case of an Associate Judge who was appointed as a Master before the commencement of section 20 of the **Judicial Remuneration Tribunal Act 1995**, the age of 60 years— and has held office for at least 10 years; or S. 104A(1)(aa) inserted by No. 22/1995 s. 20(2). (aa) has held office for at least 20 years; or (b) was appointed while under the age of 60 and has become afflicted with a permanent incapacity that disables him or her from the due execution of the office— is, on resignation or retirement, entitled to a pension payable fortnightly at the annual rate of 60% of the annual salary for the time being applicable to his or her former office. Note to s. 104A(1) inserted by No. 63/2013 s. 22. See sections 105B and 105F as to pension entitlements and appointment as a reserve Associate Judge. S. 104A(1A) inserted by No. 22/1995 s. 20(3), amended by No. 24/2008 s. 29(2)(b). (1A) An Associate Judge who— S. 104A(1A)(a) amended by No. 24/2008 s. 29(2)(b)(ii). (a) had attained the age of 60 years when appointed as an Associate Judge; and (b) has attained the age of 70 years— is, on resignation or retirement, entitled to a pension payable fortnightly at the proportion of the rate of the pension that would have been payable if he or she had held office for 10 years that is equal to the proportion of 10 years during which he or she held office as an Associate Judge. S. 104A(1B) inserted by No. 22/1995 s. 20(3), amended by No. 24/2008 s. 29(2)(c)(i). (1B) An Associate Judge who— S. 104A(1B)(a) amended by No. 24/2008 s. 29(2)(c)(ii). (a) had attained the age of 60 years when appointed as an Associate Judge; and (b) has become afflicted with a permanent incapacity that disables him or her from the due execution of the office— is, on resignation or retirement, entitled to a pension payable fortnightly at the rate of the pension that would have been payable under subsection (1A) if he or she had held office until attaining the age of 70 years. S. 104A(2) amended by Nos 23/2008 s. 16(2)(a)(b), 24/2008 s. 29(2)(d). (2) On the death of an Associate Judge, a former Associate Judge or a former Master his or her partner is, until death or marriage or until the partner becomes the domestic partner of another person, entitled to a pension payable fortnightly at the annual rate of 3/8ths of the annual salary for the time being applicable to the former office of the Associate Judge or former Associate Judge or the office of Associate Judge that is equivalent to the former office of the former Master, as the case requires. S. 104A(3) amended by Nos 23/2008 s. 16(2)(a)(c), 24/2008 s. 29(2)(e). (3) A pension is not payable under subsection (2) to the partner of an Associate Judge, a former Associate Judge or former Master where the marriage took place or the domestic partnership was entered into after the Associate Judge's or former Master's resignation or retirement. S. 104A(4) amended by No. 24/2008 s. 29(2)(f). (4) On the death of an Associate Judge, a former Associate Judge or a former Master in respect of whom no pension is payable under subsection (2) any eligible child of the Associate Judge, former Associate Judge or former Master is entitled to a pension payable fortnightly at the annual rate set out in subsection (2) divided by 4 or the number of eligible children, whichever is the greater. S. 104A(5) amended by Nos 23/2008 s. 17, 24/2008 s. 29(2)(g). (5) An eligible child of an Associate Judge, a former Associate Judge or former Master or his or her partner is a child, adopted child or stepchild of the Associate Judge, former Associate Judge or former Master— (a) who is under the age of 16; or (b) who is over the age of 16 but under the age of 25 and receiving full-time education at a school, college or university. (6) A pension payable under subsection (4) shall be paid to such person or persons as the Attorney-General directs. S. 104A(7) amended by No. 24/2008 s. 29(2)(h). (7) The right of a former Master or former Associate Judge to a pension under this section— (a) ceases if he or she accepts appointment to a judicial office in or outside Victoria; (b) is suspended while— (i) he or she holds an office or place of profit under the Crown in right of the Commonwealth or of a State; or S. 104A(7) (b)(ii) substituted by No. 18/2005 s. 18(Sch. 1 item 103.5). (ii) he or she is engaged in legal practice in any State or Territory or is employed by a law practice in connection with the practice's legal practice in any State or Territory. (8) Subsection (7) applies unless the Governor in Council by Order otherwise determines in any particular case. S. 104A(9) amended by No. 24/2008 s. 29(2)(i). (9) An Associate Judge retires for the purposes of this section only if he or she ceases to hold office in the circumstances described in section 104(7)(d). (10) This section does not apply to or in relation to a Master who resigned or retired before the commencement of section 4 of the **Courts (Amendment) Act 1990**. S. 104A(10A) inserted by No. 23/2008 s. 18. (10A) Subsections (8) to (22) of section 83 of the **Constitution Act 1975** apply with such modifications as are necessary to and in respect of a pension under this section in the same circumstances and to the same extent as those subsections apply to and in respect of a pension under section 83 of the **Constitution Act 1975**. S. 104A(11) amended by No. 19/2001 s. 20. (11) Pensions under this section and any payments of lump sums provided by the commutation of those pensions are payable out of the Consolidated Fund which is appropriated to the necessary extent. S. 104A(12) inserted by No. 24/2008 s. 29(3). (12) For the purposes of this section, service as a Master before the commencement of section 28 of the **Courts Legislation Amendment (Associate Judges) Act 2008** shall count as service as an Associate Judge. S. 104A(12A) inserted by No. 29/2015 s. 59. (12A) For the purposes of this section, if any Associate Judge was immediately prior to the Associate Judge's appointment the holder of a recognised service office, the person's service in the recognised service office shall count as service as an Associate Judge. S. 104A(12B) inserted by No. 29/2015 s. 59. (12B) Without limiting subsection (12A), if an Associate Judge who held a recognised service office immediately prior to the Associate Judge's appointment had also held another one or more recognised service offices immediately prior to, or successively prior to, that person's appointment to the last recognised service office held by that person, then that person's service in that other recognised service office or those other recognised service offices counts as service in the last recognised service office held by that person. S. 104A(12C) inserted by No. 29/2015 s. 59, amended by No. 31/2024 s. 113(Sch. 1 item 36). (12C) For the purposes of this section— ***recognised service office*** means the following offices— (a) judge of the County Court; (b) judge (however described) of a court of another State, the Northern Territory or the Australian Capital Territory (other than a Local Court, Magistrates' Court or equivalent court or the Federal Circuit Court of Australia); (c) Chief Magistrate where the appointment as Chief Magistrate was made on or after 6 March 2001; (d) master of the County Court or associate judge of the County Court; (e) master or associate judge (however described) of a court of another State, the Northern Territory or the Australian Capital Territory (other than a Local Court, Magistrates' Court or equivalent court or the Federal Circuit Court of Australia); (f) Solicitor-General; (g) Director of Public Prosecutions; (h) Chief Crown Prosecutor; (i) Senior Crown Prosecutor; (j) the Commissioner within the meaning of the Independent Broad-based Anti-corruption Commission Act 2011; (k) the Chief Integrity Inspector within the meaning of the **Integrity Oversight Victoria Act 2011**. S. 104A(13) inserted by No. 24/2008 s. 29(3). (13) In this section, ***former Master*** means a Master who resigned, retired or died before the commencement of section 29 of the **Courts Legislation Amendment (Associate Judges) Act 2008**. S. 104A(14) inserted by No. 40/2010 s. 106. (14) For the purposes of subsection (2), the definition of ***partner*** as substituted by section 105 of the **Superannuation Legislation Amendment Act 2010** applies in respect of the entitlement to a pension of a partner of an Associate Judge, a former Associate Judge or a former Master only if the death of the Associate Judge, former Associate Judge or former Master occurs on or after the commencement of the substituting section. S. 104A(15) inserted by No. 16/2016 s. 210. (15) For the purposes of this section, a reference to the resignation or retirement of an Associate Judge includes a reference to the removal of an Associate Judge from office by the Governor in Council under section 87AAB of the **Constitution Act** **1975** on the ground of proved incapacity if both Houses of the Parliament pray for the removal solely on the ground of proved incapacity. S. 104A(16) inserted by No. 16/2016 s. 210. (16) A removal referred to in subsection (15) is taken to be a resignation or retirement due to the Associate Judge having become afflicted with some permanent incapacity disabling the Associate Judge from the due execution of the Associate Judge's office. S. 104AB inserted by No. 63/2013 s. 63. 104AB Effect of part-time service arrangement on pensions of Associate Judges (1) If an Associate Judge has served under a part-time service arrangement, his or her pension under section 104A, and any pension payable in relation to the Associate Judge's partner or eligible children under that section, is reduced by multiplying the amount of the pension by the relevant factor determined under subsection (2) or (3). (2) Subject to subsection (3), the factor for the purposes of subsection (1) is the highest of— (a) the proportion of service that occurs during the period when the Associate Judge served in the office of Associate Judge; (b) if the Associate Judge is eligible for a pension under section 104A(1)(a), the proportion of service that occurs within the 10 year period immediately before the Associate Judge's retirement or resignation; (c) if the Associate Judge is eligible for a pension under section 104A(1)(aa), the proportion of service that occurs in the periods in office that— (i) involve the highest proportion of full‑time duties; and (ii) cumulatively total 20 years. (3) If an Associate Judge continues service in office beyond the date on which he or she would qualify for a pension and a higher factor would have been calculated under subsection (2) if the Associate Judge's period of office had ended on a date between that date of qualification and the date the Associate Judge actually resigns or retires, that higher factor is the factor by which the pension must be multiplied under subsection (1). ***judicial service*** means the sum of— (a) all part-time service performed by the Associate Judge calculated by reference to the proportion of full-time duties specified by each part-time service arrangement; and (b) all full-time service performed by the Associate Judge; ***proportion of service*** means the judicial service during the relevant period divided by the relevant period. **Example** Associate Judge A is appointed at the age of 55 and retires after 15 years at the age of 70. Associate Judge A serves a combination of full-time and part-time service as follows— (a) first 8 years as an Associate Judge is part-time service at 0∙8 of full-time service; (b) next 7 years as an Associate Judge is full-time service. At the time of Associate Judge A's retirement, the period that Associate Judge A served as an Associate Judge under subsection (2)(a) was 15 years and the proportion of service during that period was 13∙4 years (i.e. 8 × 0∙8 + 7). In the 10 year period immediately before Associate Judge A's retirement, the proportion of service was 9∙4 years (i.e. 3 × 0∙8 + 7). The proportion of service under subsection (2)(a) is 0∙893 (i.e. 13∙4 ÷ 15) and under subsection (2)(b) is 0∙94 (i.e. 9∙4 ÷ 10) and these are the relevant factors. Subsection (3) does not alter the relevant factor in this case. The highest proportion of service is 0∙94, which is the relevant factor. Associate Judge A will therefore receive 94∙0% of a full Associate Judge's pension. S. 104B (Heading) amended by No. 24/2008 s. 30(1). S. 104B inserted by No. 19/2001 s. 21.