Labor’s plan ‘risks judicial autonomy’, says Arthur Moses SC

Arthur Moses SC says Labor’s plans to slash the retirement funds of judges will endanger the administration of justice, as he calls on the government to delay access to the judicial pension by five years to save money instead.

Lawyers have criticised a proposal to slash the retirement funds of federal judges.

One of Australia’s most eminent silks has slammed a Labor plan to slash judicial retirement funds at risk of undermining the independence of the judiciary, saying if the Albanese government wants to save money, it should raise the retirement age of federal judges and thus the age they can access their pensions.

Former Law Council of Australia president Arthur Moses SC says proposed new laws, under which the tax on investment earnings on superannuation balances of more than $3m will be doubled to 30 per cent, are “unfair to members of the federal judiciary” and represent a “real risk to the administration of justice”.

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.

The proposal has come under fire from the Australian Bar Association and retired judges, who say it would be “highly problematic” if the government were permitted to axe the remuneration of sitting judges, and the laws would be “corrosive” to the separation of powers and heavily impact the independence of the judiciary.

Former Law Council of Australia president Arthur Moses SC.

“There is an obvious concern in relation to the federal government implementing measures which, in essence, undermine the protections which judges receive under the present judicial pension scheme,” Mr Moses said.

“At the end of the day, it is tinkering at the edges of a scheme which will not improve the bottom line of the budget in any significant manner but will have a significant impact on the members of the federal judiciary who accepted appointments based on their understanding of their ­judicial pension entitlements.

“This is part of the reason they relinquished their private practices in order to make a contribution to society.”

He said the proposed laws could have catastrophic impact on the separation of powers, if the government were permitted to tamper with the remuneration of sitting judges.

“The public should have every confidence when appearing before a judicial officer that he or she will not consciously or subconsciously be influenced in their decision-making by what rami­fications for their future ability to earn an income will arise out of a judgment which may be adverse to government or big corporate interests,” he said.

“One of the reasons why judicial pensions exist is to ensure the independence of the judiciary for the benefit of the public.”

Mr Moses was instrumental in raising the retirement age of NSW judges when he was president of the state bar in 2018, at the time arguing experienced jurists were being removed from the bench prematurely.

He told The Australian that instead of looking to slash the retirement funds of sitting judges, Labor should hold a referendum to raise the overall retirement age of new judges who join the bench, and, in turn, increase the age they can access their judicial pensions.

“Rather than tinkering at the edges of a judicial pension scheme, what the federal government should do, is consider as part of a series of non-contentious referendum proposals to modernise the Constitution so that it operates more efficiently and in tune with modern Australia,” he said.

“One such proposal is to lift the retirement ages of federal judges to 75 so that it is in line with the NSW retirement age. At the same time, the government would increase the age of eligibility for judges to access their pensions to 65, five years beyond where it currently is.

“This will represent significant 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.”