Judicial and Related Offices Background
The Remuneration Tribunal Act 1973 (the Act) provides the Tribunal with the power to determine remuneration and other benefits for judicial and related offices (sub-sections 7(3) and 7(4)). These offices fall into the Tribunal's jurisdiction under subsection 3(4)(a) of the Act, being offices established, or appointments made, under a law of the Commonwealth.
The Tribunal does not determine the entire range of employment provisions available for judicial and related offices. Authorities may prescribe additional remuneration and/or benefits. For example, some entitlements are provided under legislation administered by the Commonwealth Attorney-General (such as judges' pensions in the Judges' Pensions Act 1968 and long-leave in the Judges (Long Leave Payments) Act 1979).
With respect to the judges of the Federal Circuit Court, the Tribunal has jurisdiction to determine their recreation leave entitlements. Other leave entitlements for these judges are determined by the Governor General (s8(1) Federal Circuit Court of Australia Act 1999) and the Long Service Leave (Commonwealth Employees) Act 1976.
Under the Act, the Tribunal is required to review judicial and related offices' remuneration at least annually.
Implementation of pay increases under a Judicial and Related Offices Determination
Tribunal determinations made in relation to judicial and related offices are disallowable instruments. This means that either House of Parliament may veto (or disallow) them by passing a resolution within 15 sitting days after the relevant determination has been tabled in that particular House (see subsection 7(8) of the Remuneration Tribunal Act 1973 (the Act).
Subsection 72(iii) of the Constitution expressly prohibits diminution of a judge's remuneration while the judge remains in office. In order to ensure that this provision is complied with, subsection 7(5C) of the Act specifies that judges' remuneration increases are not payable until after the relevant disallowance periods have passed. The increase will then be backdated to the operative date. The Disallowance period for the new Principal Determination 2017/09, which increases Judges remuneration from 1 July 2017, has not passed the disallowance period.
For related offices - such as the Chief Executives of the courts and non-judicial tribunal members - the increase can be paid from the date of effect of the determination. If the determination is subsequently disallowed, those office holders do not have to repay any additional remuneration they have received. However, their pay will revert to the previous level from the date of disallowance.
The general provisions for domestic and overseas travel by office holders are set out in the Official Travel by Office Holders Determination. The Judicial and Related Offices Determination sets out which of the three travel Tiers is applicable to a judicial office holder.
Travel within Australia - For each of the three travel Tiers, Schedule A of the Official Travel by Office Holders Determination sets out the travelling allowance rates payable for the various Australian cities and towns. There is no payment where the travel does not involve an overnight absence.
Overseas Travel - The Official Travel by Office Holders Determination also provides for overseas meals and incidentals rates to be paid in accordance with the rates published annually by the Australian Taxation Office in its taxation ruling dealing with reasonable travelling allowance amounts. The Taxation Determinations can be found on the ATO website for the relevant year.
Motor Vehicle Travel - Motor vehicle allowances are also contained in the Official Travel by Office Holders Determination.