Bills Digest no. 150 2005–06
Federal Magistrates Amendment (Disability and Death
Benefits) Bill 2006
This Digest was prepared for debate. It reflects the legislation as
introduced and does not canvass subsequent amendments. This Digest
does not have any official legal status. Other sources should be
consulted to determine the subsequent official status of the
Contact Officer & Copyright Details
Magistrates Amendment (Disability and Death Benefits)
House: House of Representatives
The Act commences on the
day after it receives the Royal Assent.
The purpose of the Bill is to
amend the Federal Magistrates Act 1999 (FMA) to provide
statutory disability cover and death benefits for Federal
Magistrates. Current arrangements for Federal Magistrates provide
no specific entitlements in the event of retirement on the grounds
of disability or death.(1)
The Federal Magistrates Court of Australia (FMC) was established
by the Commonwealth Parliament at the end of 1999. It conducted its
first sittings on 3 July 2000. The FMC currently consists of a
Chief Federal Magistrate and 34 other Federal Magistrates. In the
2006-07 budget, the Attorney-General announced the appointment of
another five Federal Magistrates in response to increases in the
general federal and family law jurisdiction and workload of the
Federal Magistrates Court.(2)
The FMA established the Federal Magistrates Court and its
jurisdiction is found in the Federal Magistrates (Consequential
Amendments) Act 1999. The jurisdiction of the Federal
Magistrates Court includes family law and child support,
administrative law, bankruptcy, unlawful discrimination, consumer
protection law, privacy law, migration, copyright and workplace
relations. The court shares those jurisdictions with the Family
Court of Australia and the Federal Court of Australia. Some work in
those jurisdictions continues to be done in state courts also.
The Government s intention in the creation of the FMC was that
it would be a low cost court. As a result of this intention,
Federal Magistrates were not covered by the Judges Pensions Act
1968. The Judges Pensions Act applies to Federal, Family and
High Court judges.
On 30 March 2006 the Bill was referred to the Senate Legal and
Constitutional Legislation Committee for inquiry and report by 2
May 2006. The Committee released its
report on 2 May 2006. While welcoming the changes introduced by
the bill, the recommendation of the Committee was to make two
amendments to the bill which would provide greater consistency to
benefits payable to Federal Magistrates.
Current Benefits and Entitlements for Federal Magistrates
Schedule 1 of the FMA covers personnel matters such as the
appointment and removal of Federal Magistrates. A Federal
Magistrate is appointed by the Governor-General and must be a legal
practitioner of at least five years standing. A Federal Magistrate
s term expires when he or she turns 70 unless they resign or are
removed by the Parliament on the ground of proved misbehaviour or
incapacity. Federal Magistrates may be appointed on a full-time or
part-time basis except for the Chief Federal Magistrate who is a
Schedule 1 of the FMA provides that the Remuneration Tribunal is
to determine the remuneration for Federal Magistrates. A Federal
Magistrate s remuneration cannot be diminished while he or she is
Terms and conditions for Federal Magistrates are determined by
the Governor-General. These conditions currently include an
entitlement to a superannuation contribution by the Commonwealth.
This contribution is limited to 13.1% of salary and is paid to the
Magistrate s choice of either a complying superannuation fund or a
retirement savings account.
There are currently no provisions which provide adequate income
protection for Federal Magistrates in the event of serious
disability. A Federal Magistrate whose performance is significantly
impaired for medical reasons may thus be unwilling to resign. There
is also no lump-sum death benefit currently payable to a Magistrate
s family if they die in office or are in receipt of a disability
In comparison, the Judges Pensions Act provides for a pension of
62.5% of salary to a spouse or dependants on the death of a judge
or the death of a retired judge. When a judge retires due to
permanent disability or infirmity, they are entitled to a pension
of 60% of their salary.
In the Second Reading Speech the Attorney-General stated
The Bill provides federal magistrates, their
spouses and dependants with income protection and death benefits
that have until now been lacking. The Government acknowledges the
significant contribution federal magistrates make to an efficient
federal civil justice system, and is committed to ensuring that
they are provided with fair and adequate remuneration and
There has been limited press commentary in relation to this
Justice Kenneth Raphael, currently Australia s oldest Federal
Magistrate has been highly critical of the proposed amendments,
calling them ageist, homophobic and mean .(4) His
submission to the Senate Committee provides further detail to
Justice Ronald Sackville, as chair of the Judicial Conference of
Australia has also commented on the bill and is generally
supportive of the changes which will provide adequate retirement
benefits for Federal Magistrates.(5) Justice Sackville
has commented on the procedure required for a Federal Magistrate to
retire on the grounds of permanent disability or infirmity. The
procedure [new clause 9A] may cause uncertainty
and a medically unfit magistrate may be reluctant to retire first
and then face the uncertainty of applying for certification to the
minister or the AAT. He suggests that it would be better for the
decision to be made by an independent body and for that to be done
The Federal Magistrates Court of Australia made a submission to
the Senate Committee which was generally supportive of the changes
to improve the remuneration and entitlements of Federal
It is the view of the Court that all judicial
officers should be treated equally in respect of disability and
death entitlements. The Court submits that the simplest way to
achieve equality in this matter is to include Federal Magistrates
in the operation of the Judges Pensions Act 1968 (Cth).
However, in the absence of this, other improvements to achieve
better entitlements for Federal Magistrates are welcome. The
Federal Magistrates Amendment (Disability and Death Benefits) Bill
2006 ( Bill ) seeks to make a number of improvements in the
entitlements of Federal Magistrates.(7)
The Australian Democrats (AD) support
the recommendations of the Senate Committee report. They made some
additional comments and points of dissent in the Senate Committee
report. The AD noted that the definitions in the bill discriminate
against same sex couples and recommended the definitions in this
bill and other legislation establishing Commonwealth superannuation
and pensions should be expanded to expressly provide for the
provision of benefits where a same sex relationship exists.
The Australian Government Actuary has costed the proposed
disability cover and death benefits at 3% of salaries on average.
For the existing 35 Magistrates, the total cost would currently be
on average some $250 000 per annum.
It is proposed that the new benefits be funded through a special
appropriation authorised by the Act, as it would not be possible to
predict when such benefits would need to be paid.(8)
Items 1 9 insert new terms into the section 5
(definitions) of the FMA. Some of these terms are defined in
greater detail in the following clauses.
Item 10 inserts new section 5A
into the FMA. It defines prior judicial service. It
makes it clear that where a person held office as a Federal
Magistrate on more than one occasion any service before the person
s most recent appointment falls within the
Items 11 and 12 insert new headings and
divisions into Schedule 1. This provides a structural framework to
the Schedule. The current heading is Personnel provisions relating
to Federal Magistrates. Item 11 inserts the new
heading Appointment of Federal Magistrates which
creates Part 1 of Schedule 1 and covers existing clauses 1-3.
Item 12 inserts new headings after clause 3 of
Schedule 1. The heading Terms and Conditions of Federal
Magistrates creates a new Part 2 of
Schedule 1. It also inserts a new Division into that Part dealing
with the terms and conditions of serving Magistrates.
Item 13 inserts a new Division
2 into Part 2 of Schedule 1 to the FMA. The new
division provides for disability and death benefits for
Federal Magistrates. The following new clauses provide the details
for the new entitlements.
New clause 9A allows the Minister to certify
that a Federal Magistrate who retires before reaching age 65 is a
retired disabled Federal Magistrate. The Minister can only make the
certification following a request and must be satisfied that the
retirement was due to permanent disability or infirmity [clause 9A
(2)]. Where the Minister refuses the certification, the decision
may be reviewed by the Administrative Appeals Tribunal (AAT).
New clause 9B provides for pensions for retired
disabled Federal Magistrates. Pensions are payable until the
retired disabled Federal Magistrates reaches the age of 65 years or
dies, whichever happens first. The annual rate of pension is 60% of
the salary the Magistrate would have received if he or she had not
New clause 9C provides that a retired disabled
Federal Magistrate is only entitled to a Commonwealth
superannuation contribution until he or she reaches the age of 65
years or dies, whichever occurs first.
New clause 9D provides death benefits where a
Federal Magistrate or a retired disabled Federal Magistrate who has
not reached the age of 65 dies. The death benefits are payable to
an eligible spouse or eligible children. The amount of death
benefits payable is equivalent to the amount of Commonwealth
superannuation contributions the Federal Magistrate would have been
entitled to if the Federal Magistrate had neither died or retired
before the age of 65. Under existing arrangements the Commonwealth
makes a superannuation contribution payment to Federal Magistrates
of an amount equal to 13.1% of salary.
New clause 9E provides relationship definitions
for eligible spouse and marital relationship . These definitions
are used to establish if a person is an eligible beneficiary for a
death benefit payment. The Explanatory Memorandum states:
These definitions, and that included by clause 9F,
are generally consistent with the definitions used in legislation
establishing Commonwealth superannuation and pensions schemes,
including those contained in the Judges Pensions Act
An eligible spouse includes only those people which have or have
previously had a marital relationship with a Federal Magistrate or
retired disabled Federal Magistrate. A marital relationship is
defined to only include heterosexual married and de facto couples.
Same sex relationships are not provided for in the current
New clause 9F provides a definition for
eligible child . This definition is used to establish if a person
is an eligible beneficiary for a death benefit payment. The
criteria used to establish if a child is eligible are based on age
New clause 9G establishes a special
appropriation for pensions and superannuation contributions payable
to retired disabled Federal Magistrates and death benefits payable
to eligible spouses and children. The establishment of a special
appropriation is necessary as it is not possible to predict when
such benefits will need to be paid.(11)
Item 13 also introduces new division of Part 2 of Schedule 1
Remuneration of a Federal Magistrate not to be
diminished. Clause 9H replicates existing
clause 11 of Schedule 1 and prohibits a Federal Magistrate s
remuneration being reduced while in office.
Item 14 introduces a new heading Acting
Chief Federal Magistrate establishing Part 3 of Schedule
1. The heading will appear before existing clause 10 of Schedule 1
which allows the Minister to appoint an acting Chief Federal
Magistrate in certain circumstances.
Item 15 inserts a technical item which relates
to the reorganisation of existing provisions within the new
structural framework of Schedule 1. The item repeals clause 11 of
Schedule 1 which is replicated in new clause 9H.
Item 16 provides that the amendments only apply
to persons who are Federal Magistrates at the time the amendments
commence or who are appointed after that time.(12)
The amendments in the Bill go some way to providing improved
conditions for Federal Magistrates. The new conditions may make
appointments to the position of Federal Magistrates more
attractive. However, there has been some criticism that the
amendments are discriminatory and financially inequitable when
compared to judicial officers who are covered by the Judges
The appointment of a Federal Magistrate is until 70 years of
age. The age limitations for entitlements provided for in new
sections 9A, 9B, 9C and 9D appear to discriminate against Federal
Magistrates and retired disabled Federal Magistrates between the
ages of 65 and 70. This point was noted in some of the submissions
to the Senate Committee and in the Senate report. The Senate
Committee recommended that the age limits specified in the Bill
limiting eligibility for disability cover and death benefits be
amended from 65 to 70 years.
The amount of death benefits payable to an eligible spouse and
children are not as generous as those payable under the Judges
Pensions Act. The Senate Committee recommended that the amount of
death benefits payable under the Bill be reviewed to provide more
adequate compensation payments.
Some of the submissions(13) to the Senate Committee
were of the view that it would be far simpler and equitable to
allow the Judges Pensions Act to apply to the Federal Magistrates.
However, there are no costings available on this alternative
Hon. Phillip Ruddock MP, Attorney-General, Second reading
speech: Federal Magistrates Amendment (Disability and Death
Benefits) Bill 2006 House of Representatives, Debates,
29 March 2006, p. 7.
Hon. Phillip Ruddock MP,
Attorney-General increased access to justice News
Release 9 May 2006
Ruddock, Second Reading Speech op. cit. p. 8.
Magistrates pension scheme ageist, homophobic and mean , The
Australian 28/04/06 p. 23.
Justice Ronald Sackville
Fair pensions ensure judicial independence , The Australian
21/04/06 p. 22.
Federal Magistrates Court of Australia.
Submission to the Senate Legal and Constitutional Legislation
Committee. Inquiry into the provisions of the Federal Magistrates
Amendment (Disability and Death Benefits) Bill 2006. 19 April
Explanatory Memorandum p. 2.
ibid., p. 4.
ibid., p. 6.
ibid., p. 8.
ibid., p. 8.
submission; Federal Magistrates Court of Australia
submission to the Senate Legal and Constitutional Legislation
Committee. Inquiry into the provisions of the Federal Magistrates
Amendment (Disability and Death Benefits) Bill 2006.
13 June 2006
Bills Digest Service
This paper has been prepared to support the work of the
Australian Parliament using information available at the time of
production. The views expressed do not reflect an official position
of the Parliamentary Library, nor do they constitute professional
Staff are available to discuss the paper's
contents with Senators and Members and their staff but not with
members of the public.
© Commonwealth of Australia 2006
Except to the extent of the uses permitted under the
Copyright Act 1968, no part of this publication may be
reproduced or transmitted in any form or by any means, including
information storage and retrieval systems, without the prior
written consent of the Parliamentary Library, other than by members
of the Australian Parliament in the course of their official
Published by the Parliamentary Library, 2006.
Back to top