Pensioner notes

Path cleared should Nicholas Cowdery want to become a judge ... Chief Magistrate wins pension jackpot ... Tiny amendments with big consequences ... Judges' associate Ginger Snatch reports

There's an amendment to the NSW DPP Act that has some interesting implications.

Introduced this week into parliament the Courts and Other Legislation Amendment Bill, 2011 provides that anyone who has been a Director of Public Prosecutions and is appointed a judge is entitled to have their judicial pension computed to include their time as DPP.

Handy.

Similarly, anyone who is a judge or a retired judge and is appointed to the office of DPP can have their judicial pension computed to include their time as director.

Does this mean that Nicolas Cowdery, 65, will be appointed to the bench?

After his outburst against the government's mandatory life announcement for cop killers this might be one way of keeping the former DPP schtum.

The amendments, which take effect from the day the Bill was introduced (Tuesday, May 24) also mean that the government can deftly select a judge or retired judge for the DPP gig without jeopardising their ongoing judicial pension entitlements.

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Meanwhile, judges are incandescent with envy at the good fortune that seems to have come Graham Henson's way.

Since August 30, 2006 Graeme has been NSW chief magistrate. As of July 20, 2010 he is also a judge of the District Court.

About a month before he was appointed a judge the District Court Act was amended to make the following provision:

13. Appointments and qualifications of judges ... 

(3) The following provisions apply to and in respect of the chief magistrate of the Local Court if he or she holds office as a judge:

(a) service by the chief magistrate in the office of the chief magistrate is, for the purposes of this Act (including section 15) and the Judges Pensions Act 1953, taken to be service in the office of a judge..."

Graeme turned 60 last year.

The amendment means that the four years Henson spent as CM before his appointment as a Dizzo judge could be counted towards his judicial pension.

Section 8 of the Judges Pension Act picks up the point.

"8(1) In this section: 'prior judicial service' in relation to a judge or retired judge, means:
(a) service as a judge within the meaning of this Act ..."

When he was appointed a judge last year Henson ceased to be a public servant. His entitlement to make contributions to the SSS also ceased.

Chief Magistrate Judge Graeme Henson, fully armed

However, the District Court Act and the Judges' Pensions Act together now give rise to the CM's potential entitlement to a lump sum pension at any time after his appointment as a judge, on top of his SSS entitlements.

Because the CM's judicial pension started computation before he was a judge he would have access to a handy lump sum were he to retire, for example, in August. It would be well in excess of $200,000

He need only serve six years as a judge before he would be entitled to the full judicial pension of 60 percent of a judge's salary, for life. No need to serve the tiresome 10 years as is the requirement for other poor wretches before their full pension kicks-in.

Depending on how long he lives it seems the pension benefits could run into millions of dollars.

Flacks for the former AG John Hatzistergos denied that Judge Henson's pension is calculable from the time he commenced as CM.

So what precisely does the District Court Act amendment mean?  

We were also told by the minister's office that the amendment was not an anomaly or oversight.

Why the previous NSW government decided to so generously backdate the judicial pension entitlements for chief magistrates who are appointed to an additional judicial position is not clear.

Update on Tuesday, May 31, 2011 by Justinian

According to research conducted by the former deputy president of the Australian Law Reform Commission, Professor Brian Opeskin, the unfunded liability of non-contributory judicial pensions for federal judges and their surviving spouses as at June 30, 2008 stood at nearly $600 million.

The cost is rising rapidly; it's up 23 percent on the liability three years earlier.

Prof Opeskin says that substantial increases in life expectancy "will impose a very significant strain on the current system of judicial remuneration".

He suggests three changes to the law to address the long term demographic pressures on the pension scheme:

• Increasing the maximum age of retirement of judges;
• Increasing the minimum age at which judges qualify for the judicial poension;
• Increasing the minimum years of service required to qualify for the judicial pension.

He adds that these changes should be put in place only for new judicial appointments.