The Explanatory Memorandum for the Judges’ Pensions Amendment (Pension Not Payable for Misconduct) Bill 2020 (Cth) - a private members Bill seeking to modify the Judges’ Pensions Act 1968 (Cth) and unlikely to get traction - states
This Bill will address a deficit in the current Judges’ Pensions Act 1968 (Pensions Act), and in particular the limitation that the Act only applies to Judges currently holding positions on the bench.
The ability for a person, let alone a Judge of the High Court, to avoid any negative impact on their employment and subsequently escape all consequences of their misbehaviour by the simple happenstance that it was uncovered post retirement is grossly unfair, especially when they are in receipt of a taxpayer funded statutory pension for life.
This Bill is intended to impose on a retired Judge the same consequence for misconduct in office they would experience had they still been sitting. As the Pensions Act is currently framed, there is an inequality between the outcomes for behaviour between a current sitting Judge and that of a retired Judge where their behaviour only comes to light after their retirement. It further addresses a perception that there is an incentive for the Judiciary to ensure that any misbehaviour goes unaddressed or is kept hidden during their tenure so as to safeguard their position until retirement and therefore protecting their pension.
This Bill is retrospective in operation for the purpose of ensuring all past Judges are held accountable for any serious misconduct done while they held their position and that only becomes apparent after their retirement or departure from the Bench. This ensures equality so that all living Judges that committed misconduct will be held accountable and face the same consequences no matter if they are on the Bench or no longer on the Bench.
Note on Clauses
5. Item 2 inserts new section 17AAA at the end of Part 2 of the Act. New section 17AAA provides that a pension is not payable to a retired Judge on account of serious misconduct while they were serving as a Judge.
6. New subsection 17AAA(1) prescribes that a pension is not payable the day after a cessation event happens. This is not a discretionary provision.
7. New subsection 17AAA(2) defines ‘cessation event’. The cessation event is similar in effect to section 72 of the Australian Constitution and it is intended to operate similarly. This provision empowers the Parliament to make a resolution that a retired Judge is not to be paid their pension due to serious misconduct while the Judge was serving.
8. The intent of new section 17AAA is to ensure that a retired Judge is held to account for their conduct while they were sitting on the bench.
9. Example one - a Judge that had engaged in serious misconduct retires before the Judge’s removal under section 72 of the Constitution. Currently, where a Judge retires prior to being removed they are still entitled to being paid a pension. This Bill will ensure that a Judge cannot escape the operation of section 17 of the Act by retiring prior to their removal as a Judge.
10. Example two - a Judge’s serious misconduct is discovered post retirement. Further, this Bill will also provide a mechanism to hold a retired Judge to account for behaviours conducted while they were a Judge and that only come to light after their retirement. Where this occurs the Act as it currently stands is unable to hold the retired Judge to account to a similar extent to that of a sitting Judge. This Bill will address the inherent unfairness.
11. The phrase ‘serious misconduct’ is intended to provide the Parliament with maximum discretion to determine the scope, pervasiveness and impact of a Judge’s behaviour when determining what serious misconduct is.
12. The adoption of a new phrase, ‘serious misconduct’ is taken from the Governor-General Amendment (Cessation of Allowances in the Public Interest) Bill 2019 [noted here] and the Fair Work Act 2009. Serious misconduct in the Governor-General Bill captures acts and omissions, and in the Fair Work Act and regulations the phrase is prescribed to have its ordinary meaning.
13. This amendment does not alter the existing independence of the High Court or the Federal Court and seeks to ensure consistency with the existing operation of the constitutional powers that prohibits a pension to be paid to a person who has been removed as a Judge.
11. is problematical and for example does not require a conviction. The 2019 Governor-General Bill characterised 'serious misconduct' as involving
inappropriate, improper, wrong or unlawful conduct. Examples of serious misconduct could include corruption, sexual misconduct, sexual harassment, theft, fraud and other criminal behaviour.
The 2nd Reading Speech by Senator Patrick states
This Bill is to address an important deficiency in the Judges' Pensions Act 1968.
We are all now too aware that some industries enable predatory behaviour by those holding positions of rank and power. We are also aware that reports and evidence of wrongdoing and unconscionable behaviour are all too often dismissed or suppressed, and may only come to light long after the event but while the related damage and hurt are still sorely felt.
The ME-TOO movement has shone new light on widespread sexual harassment and sexual abuse, firstly in the entertainment industry and then across various other professions and workplaces. It seems that no profession is untouched - and that includes the legal profession, and indeed one of Australia's most preeminent institutions - the High Court of Australia.
I acknowledge the courage and thank the current High Court Chief Justice, Susan Kiefel, who undertook an investigation very promptly after it was brought to her attention that former Justice Dyson Heydon, while on the High Court bench, sexually harassed a number of associates. The investigation initiated by the Chief Justice, and carried out by a former Inspector-General of Intelligence and Security, Dr Vivienne Thom, found that six associates were sexually harassed. Two additional allegations were also brought to light.
The Chief Justice made the following comments in relation to the findings of Dr Thom's inquiry: " The findings are of extreme concern to me, my fellow Justices, our Chief Executive and the staff of the Court. We're ashamed that this could have happened at the High Court of Australia We have made a sincere apology to the six women whose complaints were borne out. We know it would have been difficult to come forward. Their accounts of their experiences at the time have been believed. "
After indicating that the Court accepted and was implementing various recommendations made by Dr Thom, the Chief Justice went on to say: "We have moved to do all we can to make sure the experiences of these women will not be repeated. There is no place for sexual harassment in any workplace. We have strengthened our policies and training to make clear the importance of a respectful workplace at the Court and we have made sure there is both support and confidential avenues for complaint if anything like this were to happen again. "
The Chief Justice's response is to be commended.
However, it is still most concerning that it appears that earlier complaints made by associates fell on deaf ears. It was well known that Justice Heydon was a bit off, that he had a track record of poor and inappropriate behaviour, indeed of sexual harassment, and it was best that young women, or indeed women of any age, were not left alone in his company.
The former judge is now retired. He has denied the findings that he harassed associates and has offered an apology for what he describes as any "inadvertent and unintended" offence.
He reportedly did not apply to renew his legal practising certificate with the New South Wales Bar Association upon its expiry on 30 June this year.
High Court Judges are entitled to a taxpayer funded pension on their retirement.
This is paid at approximately 60% of the appropriate judicial salary.
This is quite a significant sum - the Chief Justice of the High Court earns $608,150 with other High Court Judges earning $551,880. Now 60% of $551,880 is $331,128 per year - this is what Justice Heydon is currently receiving.
He is entitled to receive this because he is untouchable - his pension is guaranteed and is absolutely safe just because of the fact that he is retired and beyond the reach of the Judges' Pensions Act 1968.
Let's just imagine that the High Court took seriously those earlier complaints of sexual misconduct - the indecent assaults and sexual harassment - complaints that were apparently first raised while the Judge was still sitting on the High Court bench.
Section 72 of the Constitution provides that Justices of the High Court and other courts created by the Parliament may be removed by the "Governor-General in Council upon an address from both Houses of the Parliament in the same session, praying for such removal on the ground of 'proved misbehaviour or incapacity."
Had the complaints made been acted upon while Justice Heydon was still on the bench, and an inquiry conducted and findings made similar to those arrived at after the Judge's retirement, there would have been a real likelihood that Parliament would have passed motions seeking his removal from the Bench. His taxpayer-funded life pension would have then been forfeited as a consequence of section 17 of the Judges' Pensions Act. But that didn't happen. Instead, Justice Heydon's career went along unimpeded and unhindered until he retired - leaving behind a trail of destroyed dreams of junior lawyers and associates he assaulted. And because of the fact that he is now retired - the Act is powerless to impose any penalty on him for actions committed while a Judge.
The Act currently only applies to judges currently holding positions on the bench which means that retired Judges are able to escape the consequences of aberrant behaviour while they were on the bench. Or worse yet, retire when they get wind that allegations may be proved against them and that the Governor-General may make a direction that would remove them from the Bench and consequently deprive them of access to a generous tax-payer funded pension.
This Bill will address this significant deficiency in the accountability regime for Commonwealth judicial officers. This Bill will impose on a retired Judge the same consequence for misbehaviour they would experience were they still be sitting and then removed from the Bench under section 72 of the Constitution.
As the Judges' Pensions Act is currently framed, there is an inequality between the outcomes for behaviour between a current sitting Judge and that of a retired Judge where their behaviour only comes to light after their retirement. At the very least this legislative loophole creates a perception that there is an incentive for the Judiciary to ensure that any misbehaviour goes unaddressed or is kept hidden during their tenure so as to safeguard their position until retirement and thereby protect their pension.
The Bill is consequently retrospective in operation for the purpose of ensuring past Judges are held accountable for any serious misconduct done while they held their position and that only becomes apparent after their retirement or departure from the Bench. This reform will ensure equality so that all Judges and living former judges that committed misconduct will be held accountable and face the same consequences no matter if they are on the Bench or no longer on the Bench.
It will of course be a matter for the Parliament to determine its response in relation to any allegations or findings concerning misbehaviour that arise after a judge has retired.
The provisions of the Bill will appropriately only apply to living former Judges, as a deceased person is unable to respond in any forum to allegations or findings of misbehaviour. Consequently there is no potential impact in relation to pensions payable to the spouse of a deceased Judge.
The ability for a person, let alone a Judge of the High Court, to avoid the consequences of misbehaviour by the simple happenstance that it was only uncovered post retirement is grossly unfair, especially when they are in receipt of a taxpayer funded statutory pension for life. This is an obvious legal and ethical anomaly that this Bill will remedy.