Judges, taxes, the $6m pension … and another referendum?

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Is Australia ready for another referendum? Arthur Moses SC thinks so.

The NSW silk this week told The Australian Labor should turf a plan to slash judicial retirement funds. If they want to save money, he says, they should just raise the retirement age of federal judges and thus the age they can access their pensions.

Treasury’s controversial proposal is to double the tax on investment earnings on superannuation balances of more than $3m to 30 per cent.

It is understood that the value of the judicial pension, which can add up to about $6m over 20 years, would be added to the judge’s super total when determining the balance above the threshold.

Barristers and judges have made clear they are not on board. The Australian Bar Association labelled the reforms “highly problematic”, and said it would be “corrosive” to the separation of powers if the government of the day were able to make cuts to the remuneration of sitting judges.

Arthur Moses SC.

Former Federal Court chief justice Michael Black agreed, saying a decision to reduce the remuneration of judges could undermine their independence. Plus, he said, there was “no doubt” there could be a constitutional challenge if the laws were passed, which could lead to a situation where High Court judges are forced to hear a matter in which they have a personal financial interest.

So what about Moses’s solution?

It would see Australia go to another referendum to raise the retirement age of federal judges to 75, which would be in line with the retirement age of their NSW counterparts. At the same time, Moses says, the government should increase the age they can access the pension to 65.

“This will represent significantly more savings to the public and align the age access to the pension scheme for judges to that which other members of the community have in respect of pensions,” he said.

Moses has form in this area. He was instrumental in raising the age of retirement for NSW judges when he was president of the state Bar in 2018.

But is the Albanese government ready to schedule another referendum after the failure of the Voice last year? Something tells me no.

Tell me what you think at [e-mail]

Legal movements

• Kennedys has poached three insurance partners from Clyde & Co, with Nicole Wearne, Mark Attard and Ganga Narayanan making the move – and bringing with them a team of 16. Special counsel Carolyn Wait, Lauren Ritchie and Adrian Sella also started with Kennedys this week, along with senior associate Victoria Pappas, associates Ruby Donegan and Nick Paterson, legal secretaries Kerralie Goggin, Teresa Mangar, Yana Smith, Gabriella Tirahardjo and Tanya Bebic, and billing specialist Rachael Millar. Associates Dongqing Liu and Amy Diu and paralegal Casey Allan will start on June 11, and special counsel Ailbhe Kirrane will begin on July 15.
• Corporate and commercial heavyweight John Wei has left Mills Oakley to join Moray & Agnew as partner.
• Laura Gavan has moved to Wotton + Kearney as a partner, leaving HWL Ebsworth where she has been special counsel for more than three years.

Tassie magistrate ‘complainant, prosecutor, witness, judge, jury …’

A magistrate who sentenced a man to two months in prison for banging on an elevator door has received a slap on the wrist from the Supreme Court.

Tasmania’s chief judge Alan Blow was forced to intervene after the man, Lonewolf Brent Shayne Mansell, appealed the judgment made by magistrate Evan Hughes this week.

Hughes held Mansell in contempt, when he “wilfully misbehaved” by banging on an elevator door, causing it to break and trapping two security guards, after he was denied bail.

But Judge Blow said Hughes overstepped in convicting Mansell, especially considering the magistrate’s “private conversations” with other court staff about the matter.

“The learned magistrate was in the roles of complainant, prosecutor, witness, judge and jury,” Blow found. “It was open to him to discuss the facts as he understood them … however he erred by having a private conversation with, or privately obtaining information from, one or more individuals with information that was not originally within his knowledge.”

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