Supreme Court (Judges Long Leave Payments) Act 1980

The Act defines several terms that structure its operation. “Judge” means a Supreme Court Judge other than an acting Judge, an additional Judge, or a Judge who also holds office as a Judge of a Commonwealth court (section 3(1)). This exclusion is important: it prevents double-counting of entitlements under federal judicial schemes. However, the Act then expands the service that counts towards the long leave entitlement. Section 3(2) deems service as an acting Judge and service as a judge of another court (if the Administrator so determines) to be part of the Judge’s total service period. This can increase the accrual but also triggers the set-off provision in section 7. “Judicial salary” is defined as salary at a weekly rate equal to one-fifty-second of the annual salary payable immediately before retirement or death. This is a snapshot measure: it does not index for inflation between completion of service and payout, nor does it include allowances. The key accrual rate is 5.2 weeks per year. That figure is not arbitrary; it corresponds to approximately one day of long leave per 10 days of service, or roughly 10% of annual salary per year of service. The cap at 52 weeks (one full year’s salary) creates an upper bound, so a Judge who serves more than 10 years does not accrue additional value beyond that point if the 52-week cap bites. For example, a Judge with 15 years service would have a theoretical entitlement of 5.2 × 15 = 78 weeks, but the cap limits it to 52 weeks. The Act’s concept of “retirement” means ceasing to be a Judge otherwise than by death (section 3(1)). That includes voluntary resignation, reaching mandatory retirement age, or any other cessation except death. The Act does not define “long leave” independently; it simply uses the phrase “long leave” in section 4(2)(b) and (5) as a set-off: periods in respect of which the Judge has taken long leave or been paid in lieu are excluded from the calculation. This implies that the Act is a scheme for untaken long leave, not a separate pension or gratuity. The “set off” concept in section 7 is also a key mechanism. It applies where an amount is payable under this Act and another amount is or becomes payable (from a Territory, State, Commonwealth, or other Territory source) “by reason of judicial service or judicial service and any other service” for that same period counted under section 3(2)(b). The Act then reduces the amount payable under this Act by that other amount. This prevents a Judge from receiving a windfall from multiple jurisdictions for the same period of non-Supreme Court service.

The primary beneficiaries are Judges of the Supreme Court of the Northern Territory who were appointed before 1 June 2023 under section 32(1)(a) or (b) of the Supreme Court Act 1979. Section 3A(1) expressly excludes any person appointed on or after that date under section 32(1)(c) or (d) - which covers appointments as additional Judge or acting Judge? Actually, section 32 of the Supreme Court Act defines appointment categories: (a) Chief Justice, (b) other Judges of the Court, (c) additional Judges, (d) acting Judges. The 2023 amendment excludes those appointed under (c) or (d) on or after commencement. But section 3A(2) preserves the Act’s application to a person appointed as Chief Justice on or after commencement if that person was previously appointed as a Judge of the Court under section 32(1)(d) (i.e., as a Judge, not as acting or additional) before commencement. This creates a small transitional class. The Act also affects the dependants of a deceased Judge. Payment on death goes first to a spouse or de facto partner; if none, to a dependant; if none, to the legal personal representative (section 5(2)). The Attorney-General has a discretionary power to direct distribution among multiple dependants (section 5(3)) and to appoint a trustee for a person under a legal disability (section 5(4)). This introduces a layer of administrative discretion that creates uncertainty for beneficiaries. The Administrator of the Northern Territory has a crucial role under section 8 in deciding whether to direct payment despite removal, and under section 3(2)(b) in determining which periods of service as a judge of another court count towards the entitlement. The Attorney-General’s certificate under section 4(4) is essential for the reduced service (6 year) disability retirement entitlement; without it, a Judge who retires early due to disability cannot access the payment unless they meet the 10 year threshold. The Attorney-General’s certification power is not guided by criteria in the Act, so it creates considerable scope for discretionary outcomes. The Northern Territory Treasury is affected because the payment is from public moneys under section 6. The Act does not require a separate fund; it is a direct appropriation, so the financial impact is borne by the Territory’s consolidated revenue in the year the payment is made. There is no actuarial pre-funding. Finally, the Act indirectly affects new appointees who are excluded. Their remuneration package is lower than that of their predecessors, which may affect recruitment and retention. The Act therefore creates a two-tier system: pre-2023 judges have an additional entitlement; post-2023 judges do not, unless they previously served as a Judge before the cut-off and are later appointed Chief Justice.

The primary right is the entitlement of a qualifying Judge (or their beneficiaries) to a lump sum payment on retirement or death, as calculated under section 4. This is a statutory right, not a contractual one. The Judge does not have a right to take the long leave itself; the Act only provides for payment in lieu. The Judge’s right to payment is contingent on either completing 10 years of service (or death at any time) or meeting the 6 year threshold with a disability certificate or mandatory age retirement. There is no right to payment upon resignation before 6 years, unless death intervenes. The right is also subject to reduction by the set-off mechanism in section 7. The beneficiary on death has a right to payment, but that right is qualified by the Attorney-General’s power to direct distribution among multiple dependants. That power is unfettered by any statutory criteria, so a dependant cannot be certain of their share. The duties under the Act fall on the Executive. The Attorney-General must consider issuing a certificate under section 4(4) if a Judge retires early for disability; the Act does not say “must” but the entitlement is conditional on certification. The Attorney-General also has a duty to direct distribution among dependants if there are multiple; if no direction is given, the payment presumably goes to the identified dependant or spouse. The Administrator must determine periods of service under section 3(2)(b) for judges of other courts, if the Judge applies or if the matter arises. That determination is a discretionary administrative decision, but it directly affects the quantum. Under section 8, the Administrator has a duty to decide whether to direct payment upon removal of a Judge; if no direction is given, no payment is made. This creates a strong disincentive for judges to engage in conduct that might lead to removal. There is no duty on the Judge to apply for the payment; the Act is silent on the process. The duty to pay is on the Territory, subject to appropriation under section 6. The Act does not impose a time limit for payment, but presumably it would be paid promptly after retirement or death. The absence of a timeframe creates potential for delay. The set-off provision in section 7 imposes a duty on the payer to calculate the reduction; this may require the Territory to inquire about payments from other jurisdictions. That is an administrative burden. The appropriation duty under section 6 is automatically satisfied by the existence of public moneys; no further legislative approval is needed for each payment.

The Act contains no criminal penalties, fines, or civil liability provisions. It is not a penal statute. Its enforcement mechanisms are structural and administrative. The primary enforcement tool is the set-off in section 7, which ensures that a Judge cannot receive double compensation for the same period of service. If a payment is made in error, the Act provides no express mechanism for recovery. However, general law principles of restitution or mistake would likely apply. The second enforcement mechanism is the removal exclusion in section 8. If a Judge is removed under section 40 of the Supreme Court Act 1979, the default position is that no payment is made. The Administrator has the discretion to override that exclusion, but if the Administrator declines, the Judge loses the entitlement entirely. That is a powerful deterrent: it ties the long leave payment to good behaviour and ongoing fitness for office. The third enforcement tool is the Attorney-General’s certification power under section 4(4). If the Attorney-General refuses to certify that the retirement is due to permanent disability or infirmity, a Judge with 6 to 10 years of service cannot claim the payment. That certification decision is not reviewable under the Act, though it may be subject to judicial review under general administrative law. The enforcement of the Act against the Territory if it fails to pay is not specified. A Judge would have to sue for the money as a debt due, relying on the statutory entitlement. The Act does not create an independent cause of action, but section 4 creates a legal obligation to pay, and section 6 appropriates the money. The Territory could raise the set-off or removal provisions as defences. There are no liquidated damages, interest, or penalties for late payment. The absence of a prompt payment regime means the Territory has no financial incentive to pay quickly. The Act also does not provide for indexing the payment for inflation if there is a delay. That is a significant design weakness. The compliance burden is entirely on the Territory: it must maintain records of service, calculate payments correctly, apply set-offs, and obtain necessary certifications. There is no auditing obligation specified. The beneficiaries have no formal enforcement role beyond making a claim. The Administrator’s direction under section 8 is not subject to any statutory criteria, which creates a risk of arbitrary or inconsistent outcomes.

The Act is expressly linked to the Supreme Court Act 1979 in several ways. Section 3(1) incorporates the definitions of “acting Judge” and “additional Judge” from that Act. Section 3A(1) refers to appointments under section 32(1)(c) or (d) of the Supreme Court Act. Section 8 ties non-payment on removal to removal under section 40 of that Act. Any amendment to those provisions in the Supreme Court Act would have a flow-on effect here. The Act also interacts with the Supreme Court (Judges Pensions) Act 1980, which is referenced in section 4(4) for the Attorney-General’s certificate that retirement is due to permanent disability or infirmity. That Pensions Act likely has its own definition of disability and certification process, which this Act adopts by reference. There is no express interaction with the Judicial Officers’ Superannuation Act or any Commonwealth superannuation scheme, but the definition of “Judge” excludes those who also hold a Commonwealth judicial office, so such dual-office holders are not entitled under this Act at all. However, their service as a Commonwealth judge may be counted under section 3(2)(b) if the Administrator so determines, but then section 7 set-off would likely reduce the payment by any amount from the Commonwealth scheme. The Interpretation Act 1978 is referenced in the note to section 3(1) as containing relevant definitions and provisions. That Act would govern matters like the meaning of “spouse”, “de facto partner”, and “legal personal representative” unless the context otherwise requires. The Law Reform (Gender, Sexuality and De Facto Relationships) Act 2003 amended section 5 to include de facto partners, and that amendment is in force. The Act interacts with the Financial Management Amendment Act 2009, which amended section 6 to align with modern appropriation language. The Local Court (Related Amendments) Act 2016 amended section 3 to update references following the creation of the Local Court. There is no interaction with the Public Service Act or general leave schemes, because judges are not public servants. The Act operates as a standalone entitlement. It does not interact with the Fair Work Act or any industrial instrument. The set-off provision in section 7 interacts with any law of another jurisdiction that provides payments for judicial service, including the Commonwealth’s High Court of Australia Act or Federal Court legislation. The Administrator’s determination under section 3(2)(b) is a form of executive decision that likely must be made in writing and could be subject to judicial review under the Judicial Review Act (NT) or common law. There is no express ouster clause. The Act does not interact with anti-discrimination legislation or human rights Acts; no mention of such. The exclusion of post-2023 appointees does not appear to be challenged on constitutional grounds, but it could raise questions about judicial independence and remuneration under the Northern Territory self-government arrangements.

The Act was originally assented to on 4 June 1980 and commenced on 2 April 1982. The first substantive amendment was the Supreme Court (Judges Long Leave Payments) Amendment Act 1990 (Act No. 53, 1990), which amended sections 3 and 4. It appears to have changed the calculation method, moving from a three-month payment (the original likely text) to the current 52-week/5.2 weeks formula. It also amended the definition of “judicial salary”. The Statute Law Revision Act 1991 made minor formal amendments to section 4. The Statute Law Revision Act 1999 substituted a new section 6 on appropriation to update drafting conventions. The Law Reform (Gender, Sexuality and De Facto Relationships) Act 2003 (Act No. 1, 2004) amended section 5 to insert “or de facto partner” and to update references to spouses, reflecting contemporary family law. The Financial Management Amendment Act 2009 made a further amendment to section 6 to align with the Territory’s financial framework. The Local Court (Related Amendments) Act 2016 amended section 3 in relation to the definition of “Judge” to reflect changes in court structure, though the exact change is not specified in the source. The Judicial and Other Officers’ Entitlements Legislation Amendment Act 2023 (Act No. 14, 2023) is the most significant amendment. It commenced on 1 June 2023. It inserted the new section 3A, which limits the Act’s application to future appointees. It also amended sections 3, 4, and 5. Under section 3, the definition of “Judge” was apparently adjusted to exclude acting and additional judges outright, and to exclude Commonwealth court judges. Under section 4, the calculation provisions were refined. Under section 5, payment on death provisions were updated. The 2023 Act also made general amendments of a formal nature via the Interpretation Legislation Amendment Act 2018 (Act No. 22, 2018) to sections 1, 3, 4, and 8, but those are not substantive. The 2023 amendment effectively closed the scheme to new entrants, which is a major policy shift. The Act has not been repealed; it remains in force for existing appointees. There is no indication of any further amendments after 1 June 2023. The endnotes show a list of amendments up to 2023.

The source text of the Act does not cite any cases, and no litigation is referenced in the provisions or endnotes. There are no noted judicial interpretations of this Act in the version provided. That is not surprising for a long-standing, relatively narrow statute that creates clear entitlements and has a limited class of beneficiaries. Typically, disputes over long leave payments to judges would be resolved administratively rather than through the courts. The set-off and removal provisions are potential sources of litigation. A removed judge might challenge the Administrator’s refusal to direct payment, arguing that the discretion was exercised unreasonably or for an improper purpose. That would be a common law judicial review claim, citing Wade or the Administrative Decisions (Judicial Review) Act (if applicable in the NT). The Attorney-General’s refusal to certify disability under section 4(4) could also be challenged. A dependant might dispute the Attorney-General’s distribution direction under section 5(3) on grounds of procedural fairness. The Trustee appointment power under section 5(4) could also be contested. There may be unreported or unrecorded decisions of the NT Supreme Court on these matters, but the Act itself provides no record. In the public domain, there do not appear to be any well-known cases. The absence of litigation might suggest that the Act operates smoothly, or that the beneficiaries are reluctant to sue the government. It could also indicate that the amounts are relatively small in judicial terms and that the government settles any genuine disputes. The 2023 amendment that closed the scheme to new appointees might generate litigation if a newly appointed Judge argues that the exclusion breaches an implied constitutional right to judicial remuneration under the self-government Act or under the principle of judicial independence. However, the Northern Territory Supreme Court is a territory court, not a federal court, and such an argument would face hurdles. There is no constitutional guarantee of pay for territorial judges. That potential litigation remains hypothetical. The Act itself provides no litigious history.

The most significant trap for the unwary is section 3A. Any person appointed as a Judge on or after 1 June 2023 under section 32(1)(c) or (d) of the Supreme Court Act is wholly excluded from the Act. That includes acting Judges and additional Judges appointed after that date. Even a person appointed as a Judge under those provisions for a short period would be excluded even if they later become a permanent Judge. The saving provision for Chief Justice appointments under section 3A(2) only applies if the person was previously appointed as a Judge under section 32(1)(d) before 1 June 2023 - that is, as a regular Judge, not an acting or additional Judge. So a person who was an acting Judge before 1 June 2023 but never a regular Judge would not be saved. That is a narrow transition. A second trap is the interplay between sections 4 and 7. A Judge who served as a judge of another court (e.g., a State Supreme Court or the Family Court) may have that service counted under section 3(2)(b) by Administrator determination. But if that service also gives rise to a separate payment from that other jurisdiction (e.g., long leave payout), the amount under this Act is reduced by that other payment. The Judge may end up with no net benefit from that period of service. Worse, the set-off applies to “any amount or allowance paid or payable” from any Australian government, including the Territory itself. So if the other jurisdiction pays before the NT payment, the NT payment is reduced. But if the other jurisdiction pays after, the NT payment would have been made in full and then the other payment would have to be refunded? Section 7(1) says “the amount that would, but for this subsection, be payable under this Act ... shall be reduced by the amount that is payable in respect of that period.” The wording is “is or becomes payable”. That suggests the reduction is to be applied at the time the NT payment is made, and if the other payment becomes payable later, the Act does not provide for clawback. That is a drafting ambiguity. A third trap: the removal exclusion under section 8. Unless the Administrator directs otherwise, removal under section 40 of the Supreme Court Act results in no payment, regardless of years of service. A Judge might have 20 years of service and be removed for misconduct, losing the entire long leave payout. That is a powerful deterrent, but also a potential unfairness if the removal is later overturned. A fourth trap: the formula in section 4(2)(b) excludes “any period of service in respect of which the Judge has taken long leave or has been paid in lieu of taking leave.” If the Judge took any long leave during their tenure, those periods are not counted in the accrual. The Judge cannot take the leave and also get paid for it at retirement. That is standard, but the record-keeping must be precise. A fifth trap: the 5.2 weeks per year rate is fixed and not indexed. For a Judge who served 20 years, the maximum is 52 weeks of salary at the final rate. But if the Judge served 30 years, the cap still applies. The Judge receives no extra compensation for service beyond 10 years if the cap applies. That creates an incentive to take long leave earlier rather than deferring. A sixth trap: the payment is from public moneys under section 6, but there is no guarantee of priority if the Territory faces a financial crisis. The appropriation is automatically established, but the payment is subject to the normal budget processes. A seventh trap: the Attorney-General’s certification power under section 4(4) has no stated criteria. A Judge who retires for disability may be denied certification arbitrarily. The Judge could challenge that, but litigation is risky. An eighth trap: the distribution among dependants under section 5(3) is entirely at the Attorney-General’s discretion. A dependant who is not the spouse has no certainty of payment. The Act does not define “dependant”. That could be litigated.

Compliance with this Act is squarely the responsibility of the Northern Territory Government, not the Judges. The Judges are passive recipients. For the Attorney-General, compliance means properly exercising the certification power under section 4(4) in good faith, based on medical evidence, and without delay. A written certificate should be issued before the Judge retires to ensure the entitlement crystallises. For the Administrator, compliance means making determinations under section 3(2)(b) regarding service as a judge of another court. This should be done in writing, specifying the period to be counted, to provide certainty. The Administrator must also decide whether to direct payment under section 8 upon removal. That decision should be documented and based on relevant considerations, not arbitrarily. For the Treasurer or relevant financial officer, compliance requires calculating the precise payment under section 4. That involves verifying the Judge’s total completed years of service, subtracting any periods for which long leave was taken or paid in lieu. For a Judge with more than 10 years of service, the cap at 52 weeks applies; for a Judge with 6 to 10 years and a qualifying retirement (mandatory age or disability), the uncapped 5.2 weeks per year applies. The calculation must use the judicial salary at the weekly rate (annual salary divided by 52) as defined. For a death payment with less than 10 years service, the payment is still the lesser of 52 weeks or 5.2 weeks per year; but note that the 52 week cap is absolute, so even for a Judge who dies after 2 years, the payment is 5.2 × 2 = 10.4 weeks (not 52 weeks, because the lesser is 10.4 weeks). The mistake to avoid is applying the cap to short service deaths. The next compliance step is to apply the set-off under section 7. The officer must identify whether the Judge has received or will receive any other payment from an Australian government for the same period of service that was counted under section 3(2)(b). That requires communication with other jurisdictions. The reduction is dollar-for-dollar. If the other payment exceeds the NT entitlement, the NT payment is zero. The officer must then determine the correct payee under section 5. On death, the priority is spouse or de facto partner; if none, then a dependant; if none, legal personal representative. If there are multiple dependants, the Attorney-General must give a direction; if no direction, the officer should not pay until one is issued. If the payee is under a legal disability, the Attorney-General must appoint a trustee. The officer should then arrange payment from public moneys under section 6, ensuring proper appropriation. Record-keeping is essential: service history, leave records, certifications, determinations, and payment calculations should be retained for audit. Finally, the government should communicate the entitlement clearly to Judges before retirement, including the potential reduction under set-off, to avoid disputes. For Judges, compliance is minimal: they should maintain accurate records of their service and any leave taken, and inform the government of any prior judicial service in another jurisdiction. They should also be aware that removal forfeits the entitlement unless the Administrator directs otherwise.