Reports with recommendations for Judges, Masters and Magistrates – 2009 November 27th
REPORT ON THE REMUNERATION OF JUDGES, DISTRICT COURT JUDGES, MASTERS OF THE SUPREME COURT, MAGISTRATES AND THE PARLIAMENTARY INSPECTOR OF THE CORRUPTION AND CRIME COMMISSION
Section 7 of the Salaries and Allowances Act 1975 (the Act) requires the Tribunal, at intervals of not more than twelve months, to enquire into and report to the Minister responsible on the question of whether any alterations are desirable in the remuneration to be paid or provided to Judges, District Court Judges, Masters of the Supreme Court, Magistrates and the Parliamentary Inspector of the Corruption and Crime Commission. The Act provides further that if the Tribunal reports that alterations are desirable, it shall recommend the nature and extent of the alterations to be made.
A copy of the report must be laid before each House of Parliament within five sitting days of that House after the Minister has received the report.
It is customary for the Tribunal to conduct its annual enquiries into judicial remuneration during the last quarter of each year, with any recommendations for change being operative from 1 January of the following year. The Tribunal’s last report was issued on 28 November 2008.
Since 1990 the Western Australian Government has endorsed the appropriateness of maintaining national relativity in relation to judicial remuneration. However, this year the Government has been silent on the matter, in part, because at the time of making its submission, the Government was aware that the Commonwealth Remuneration Tribunal (CRT) had not yet issued its report on the salaries of the Federal judiciary. The national relativities agreed by the Australian Attorneys General intend to recognise the pre-eminence of the High Court, ensure some consistency between jurisdictions and reduce leap-frogging caused by differences in remuneration between jurisdictions. The Attorneys-General considered the State relativity for judges’ remuneration to be in the order of 85 percent of remuneration set for the High Court.
This year, the CRT deferred any increase for the Federal judiciary from its usual implementation date of 1 July because of the economic circumstances then prevailing. With effect from 1 October 2009, the CRT recommended an increase of 3.0 per cent for the Federal judiciary on the basis of cost of living increases. The CRT subsequently published its Review of Remuneration Relativities among Australia’s Federal Courts and recommended further increases of 6.0 per cent to be paid in four instalments. The first instalment of 1.5 per cent was recommended to be effective from 1 November 2009 with the remaining three instalments to be implemented by 1 May 2011.
The four increases of 1.5 per cent were based on an acceptance that there had been a significant work value increase for the Federal Court over the years that is greater than the normal increase in workload and complexity. However, the CRT considered that the current economic circumstances precluded the granting of the full 6.0 per cent increase at this time.
These recommendations are subject to a disallowance period in the Commonwealth Parliament. The disallowance period relevant to the 3.0 per cent cost of living increase will have passed after 22 February 2010 and the disallowance period relevant to the additional 1.5 per cent increase will have passed after 9 March 2010 based on current and proposed Parliamentary sitting calendars.
In relation to the possible flow on to the States of the increase in the remuneration of officers of the Federal Courts, the CRT stated,
In making its decision, the Tribunal has taken into consideration factors pertaining specifically to judicial offices in the federal sphere. Accordingly the Tribunal is of the view that any adjustment to the remuneration of judicial offices in the states and territories would need to be based on specific issues particular to each jurisdiction. (page 11)
In discharging its statutory requirements with respect to the remuneration of the judiciary, the Tribunal’s approach has been to:
- advertise for public submissions;
- write to key office holders; and
- consider relevant labour market and economic data.
This process provides an opportunity for members of the public, the Government, the judiciary themselves or any other interested party to make a submission. It also helps to inform the Tribunal of changes which might have taken place in the roles or responsibilities of the judiciary over the past year and other remuneration issues for Members.
The Tribunal received submissions from the Minister for Commerce on behalf of the Government of Western Australia, the Chief Justice, the Chief Judge of the District Court, the Magistrates’ Society of Western Australia, the Magistrate resident in Kununurra, the Acting Principal Registrar of the Supreme Court, the Principal Registrar of the District Court, the Parliamentary Inspector of the Corruption and Crime Commission and a member of the public. The Tribunal considered all the submissions received.
Subsequent to receiving submissions, the Tribunal met with the Chief Justice.
Some of the main issues raised in the submissions were:
- whether Judges of the District Court should have salary parity with the Senior Master of the Supreme Court;
- whether the salary of a Magistrate should be increased to 90 per cent of the salary of a District Court Judge;
- whether Western Australian judicial salaries should remain unchanged due to the economic circumstances;
- whether the recommended salary increases totalling 4.5 per cent to be provided to the Federal judiciary in October and November 2009 should flow on to the Western Australian judiciary;
- whether the timing of any increase should be from 1 January or at another date; and
- whether the travel and accommodation allowances payable to the judiciary should be linked to those set by the Western Australian Public Service, the Australian Taxation Office or the Commonwealth Remuneration Tribunal.
A submission from the Minister for Commerce noted that the Tribunal to date in 2009 had not increased the remuneration of other office holders within its jurisdiction. The submission stated that, “Given the uncertain economic climate, the Minister supports the Tribunal’s decision to refrain from awarding increases.” The Minister went on to submit that there be no increase in the base salary payable to judicial office holders. Given that the Minister made his submission prior to the CRT recommending increases to the salaries of the Federal judiciary, he encouraged the Tribunal to “reassess the economic circumstances and salaries of offices within its jurisdiction” after the CRT had reported.
The Chief Justice, on behalf of the Supreme Court Judges and Master submitted that the Tribunal should recommend an increase in the remuneration of Judges and the Master of 4.5 per cent to maintain parity with the Federal Court. This proposed increase was comprised of a 3.0 per cent cost of living adjustment and a 1.5 per cent adjustment based on increased work value. The submission acknowledged the CRT’s comment that the 1.5 per cent adjustment for the Federal Court was based on factors considered to be particular to that Court. In support of the adjustment flowing on to the Supreme Court in Western Australia, the submission presented evidence that there had been increases in workload, complexity and jurisdiction, as well as additional work compared with that of the Federal Court and other courts.
The Judges of the District Court submitted that the full 4.5 per cent increase recommended by the CRT should be passed on with effect from 1 January 2010. The Judges maintained that, at a minimum, relativity as between a District Court Judge and a Magistrate should be restored to the pre 30 November 2007 level. (At that time, a Magistrate received 80 per cent of the salary of a District Court Judge.) The impact of restoring the relativity between a District Court Judge and a Magistrate without reducing the current salary of a Magistrate, would be an increase of 3.1 per cent in the salary of a District Court Judge from $307,175 to $316,775. The impact of a further 4.5 per cent flow-on from the Federal judiciary would be a total increase of 7.8 per cent in the salary of a District Court Judge from $307,175 to $331,173.
The submission from the District Court Judges also sought parity between the remuneration of District Court Judges and the Senior Master of the Supreme Court. This would require an increase of 3.0 per cent to the current remuneration of District Court Judges. The submission noted this would impact the relativity between Supreme Court Judges and District Court Judges, but the submission stated that “it is well justifiable and overdue”.
The Judges acknowledged that there was no comparison between the civil work of the Senior Master and the predominantly criminal work of the District Court Judges. However the Judges argued that there has been a gradual transfer of criminal jurisdiction to the District Court from the Supreme Court over the years, that there is a higher degree of public scrutiny attached to their work than to that of the Supreme Court and that the District Court has maintained clearance rates for criminal and civil matters and was “the most efficient Court of its kind in Australia”. The impact of a further 4.5 per cent flow-on of increases recommended for the Federal judiciary would be a total increase of 7.6 per cent in the salary of a District Court Judge from $307,175 to $330,662.
Submissions of the Magistrates’ Society sought an adjustment of approximately 9.1 per cent to the salaries of Magistrates to increase them to 90 per cent of the salaries paid to Judges of the District Court. This adjustment was sought on the basis of an increase in the seriousness of criminal offences dealt with by the Magistrates Courts, a significant devolution of work previously undertaken by the District Court, a trebling of the monetary jurisdiction of the Magistrates’ civil court and a change in the qualifications required for appointment to the Magistracy. If the Magistrates were also to receive a further flow-on of increases recommended for the Federal judiciary, the impact would be a total increase of 14.0 per cent from $253,420 to $289,022.
The Magistrates’ Society also requested that the Tribunal specify the value of a Magistrate’s entitlement to a four wheel drive vehicle and that the Tribunal adopt the Commonwealth Remuneration Tribunal’s rates determined for travel and accommodation by Federal Magistrates.
Submissions from the Magistrate resident in Kununurra raised a number of issues related to conditions of service such as leave entitlements, the adequacy of the travel and accommodation allowance and the capacity to travel interstate to Darwin.
The Parliamentary Inspector of the Corruption and Crime Commission submitted that the existing salary relativities be retained for a Parliamentary Inspector whose remuneration is not determined under a different authority.
The Registrars of the Supreme Court submitted that the increased work value attributed to the Judges and Master of the Supreme Court should flow on to the Registrars. Evidence of increased work load, complexity and jurisdiction was provided.
The Principal Registrar of the District Court submitted that the work of the District Court Registrars continues to be of a level of complexity to at least justify retaining current relativities. In addition, he argued that there should not be a gap between the salary of a Registrar and a legally qualified Deputy Registrar because the work undertaken by the Perth based Deputy Registrars is, with one exception, identical to that undertaken by Registrars.
A submission from a member of the public called for the salaries of judicial officers and court registrars to remain unchanged on account of the serious economic situation.
In determinations issued by the Tribunal so far this year, the state of the economy has militated against any increases in remuneration being awarded. With growth in the global economy in the second half of 2009 there is now cautious optimism that the worst is behind us.
Most major economies are expanding, albeit slowly. Financial markets have stabilised, corporate earnings have exceeded expectations and commodity prices have increased in the third quarter. Economic conditions in Australia have been stronger than expected with the benefit of strong performances in Asian economies, particularly from China. (Reserve Bank of Australia, Statement on Monetary Policy, November 2009.)
The Wage Price Index for the period to 30 September 2009 grew by an annual average of 3.4 per cent nationally and 4.1 per cent in Western Australia. In the public sector, the annual average growth of 6.2 per cent in the Wage Price Index for Western Australia was significantly higher than the growth in the national public sector Wage Price Index of 4.6 per cent for the same period.
The Consumer Price Index for the period to 30 September 2009 grew by 1.3 per cent nationally and 1.2 per cent in Western Australia. These and other relevant indices are shown in Table 1 below.
Table 1: National and Western Australian Economy – Quarterly and Annual Average Increases – Selected Economic Indicators 2009
|Perth - Consumer Price Index – Sept Qtr 2009
|National - Consumer Price Index – Sept Qtr 2009
|WA - Wage Price Index – Sept Qtr 2009
|National - Wage Price Index – Sept Qtr 2009
|WA – Wage Price Index – Sept Qtr 2009 – Private Sector
|National – Wage Price Index – Sept Qtr 2009 – Private Sector
|WA – Wage Price Index – Sept Qtr 2009 – Public Sector
|National – Wage Price Index – Sept Qtr 2009 – Public Sector
|WA – Average Weekly Earnings – May Qtr 2009
|National - Average Weekly Earnings – May Qtr 2009
|WA – Average Weekly Earnings (Full-time Adult Ordinary Time Earnings)– May 2009 Qtr
|National - Average Weekly Earnings(Full-time Adult Ordinary Time Earnings)– May 2009 Qtr
|WA Total Employment Growth – Oct 2009
|National Total Employment Growth – Oct 2009
Sources: CPI: ABS Cat. 6401.0; WPI ABS Cat. 6345.0; AWE ABS Cat. 6302.0; EG ABS Cat. 6202.0
With improvements in economic performance and forecasts of continuing growth, the Tribunal considered that the public interest required that consideration be given to the remuneration of the judiciary under the principle that has applied since 1990.
Remuneration of Judges
The remuneration of judges of the Supreme Court of Western Australia has been aligned with a percentage of the rate recommended by the CRT for the High Court of Australia. The alignment between the High Court and the Supreme Court is important to maintaining the hierarchy of the Courts in the State and Federal system.
As a matter of equity the economic adjustment of 3.0 per cent recommended by the CRT would have application to the judiciary in Western Australia under this principle.
However, the Tribunal was mindful that part of the increase in remuneration that has flowed on to the High Court (1.5 per cent) was linked to increases in work value attributed to the Federal Court on the basis of evidence that was particular to that Court. Under the circumstances, the Tribunal gave special consideration as to whether such a salary increase should flow-on to the judiciary in Western Australia.
Both the Supreme Court and the District Court presented evidence to the Tribunal about increases in work volume and work value to support their submissions for the flow-on of salary increases from the Federal judiciary. This evidence, together with the value of maintaining the current relativities between the High Court and the Supreme Court in Western Australia, was taken into account by the Tribunal in deciding that the work value increases from the Federal judiciary should flow on to the Western Australian judiciary.
The Tribunal considered the submission of the District Court Judges that the salary relativities should be adjusted between a District Court Judge and a Senior Master of the Supreme Court on the basis of increased jurisdiction transferred from the Supreme Court.
The Tribunal took the view that there was evidence of growth in jurisdiction and complexity in the work of both the Supreme Court and the District Court. Furthermore, comparisons between the work of a Master of the Supreme Court and a Judge of the District Court were not particularly relevant. The Tribunal accepted the general principle put to it that any alteration in the relativities between the different levels of remuneration applicable to the different levels in the judicial hierarchy should only occur in the most exceptional circumstances. On this basis, the Tribunal concluded that there was no compelling reason to make an adjustment to the existing relativities between the salaries of Judges of the Supreme Court and those of the District Court.
Remuneration of Other Office Holders
Evidence that there had also been devolution of work and jurisdiction to the Magistrates from the District Court was also considered by the Tribunal.
The Tribunal concluded that there was no compelling evidence that the transfer of work and jurisdiction from the superior courts warranted an adjustment to the relativities existing in Western Australia between these courts.
On advice from the Magistrates’ Society, the schedule to this report has been amended to delete the word “Stipendiary”, which has not been used since the introduction of the Magistrates Court Act 2004.
Motor Vehicles for Judges, Masters and Magistrates
The Tribunal has almost completed its review of the motor vehicle entitlements of judicial office holders within its jurisdiction. This review has been conducted with reference to the Government’s Fleet Policy and Guidelines that became effective on 21 August 2008 and introduced a Fuel Efficiency Policy with specified CO2 emission targets. The Tribunal will soon consult with affected parties.
In the meantime, the Tribunal has recommended some minor adjustments to the motor vehicle entitlement.
In response to a request from the Magistrates’ Society, the Tribunal has recommended that four wheel drive vehicles shall be of a standard, the cost of which does not exceed the more expensive of the Toyota Prado GXL Auto 3.0 litre Turbo Diesel or the Nissan Patrol ST Auto 3.0 litre Turbo Diesel with factory fitted “roo” bars. In making this decision, the Tribunal was mindful that these nominated vehicles were similar to those nominated for Members of Parliament who required the use of a four wheel drive vehicle.
Following a submission from the Magistrate resident in Kununurra, the Tribunal considered it appropriate to permit that magistrate to travel to Darwin in the Magistrate’s government provided vehicle. This provision was made in recognition of the isolation of Kununurra from any major regional centre and the town’s proximity to Darwin. The Tribunal noted that Magistrates resident in other locations had much greater access to larger regional centres or to Perth.
Travelling and Accommodation Allowance
The Tribunal has reviewed the travelling and accommodation allowance taking into account submissions from office holders and it has been adjusted in this report. In reviewing the allowance, the Tribunal has continued to apply the principle that the allowance is intended neither to provide financial gain nor loss on the part of members of the judiciary in carrying out their duties.
In recent years for the purposes of setting the travel and accommodation allowance, the Tribunal has generally adopted the Australian Taxation Office (ATO) reasonable benefit limits as these are a universally applicable standard in Australia. In 2008, the Tribunal recommended that Public Service Rates apply to locations north of the 26th parallel as there were several key locations where the Public Service rates were higher than the comparable ATO rates. However, the Tribunal considers there are some locations where the new Public Service rates are not appropriate and in this report has recommended application of the 2009/10 reasonable benefit limit for employees with an annual salary above $166,501.
The Tribunal has continued to make provision for additional costs to be paid, “If the reasonably and properly incurred travelling and accommodation expenses exceed the abovementioned specified rates”.
The meals and incidentals rate has been increased in accordance with the relevant ATO 2009/10 rates.
The value at which a motor vehicle should be assessed for the purpose of remunerating a part time Magistrate has been increased from $23,000 per annum to $24,000 per annum in recognition of increased leasing costs of vehicles currently on the Government’s Common Use Contract Item 1008.
The Tribunal has further considered the timing of any alterations to recommendations for remuneration. At present they are prospective and take effect about six months after the Federal determination.
In the normal course there is a six month difference between adjustments to remuneration in the Federal and State Courts. The Tribunal has in the past made allowance for this within the relativity established under the arrangement which flows from the relationship with remuneration of the High Court. On this occasion, the CRT recommendation, subject to disallowance in the Parliament, will have effect from 1 October 2009 (3.0 per cent) and 1 November 2009 (1.5 per cent). To give effect to the next instalment of the work value adjustment within the time frame set down by the CRT, a further adjustment of 1.5 per cent will have application in May 2010.
To accommodate these adjustments, the Tribunal has decided to recommend that the remuneration of judges in this State be increased by 3.0 per cent with effect from 1 December 2009 and that the level of remuneration be further adjusted by 3.0 per cent with effect from 1 July 2010.
In future this arrangement will enable the Tribunal to implement adjustments in remuneration in this State in line with increases in the Federal arena. In the meanwhile, the differential in relativity will accommodate the timing.
The Tribunal recommends adjustments to the remuneration paid or provided to Judges, District Court Judges, Masters of the Supreme Court, Magistrates and the Parliamentary Inspector of the Corruption and Crime Commission to be in line with those set out in the attached Schedule. For ease of reference, the Schedule consists of a consolidated listing of all the entitlements and benefits provided by way of past and current recommendations of the Tribunal.
Specifically, the current recommendation is that a 3.0 per cent increase in remuneration be granted to Judges, District Court Judges, Masters of the Supreme Court, Magistrates and the Parliamentary Inspector of the Corruption and Crime Commission with effect from 1December 2009 with a further 3.0 per cent increase in remuneration with effect from 1 July 2010.
TABLING OF REPORT
Under the provisions of the Salaries and Allowances Act 1975, this report is required to be laid before each House of Parliament within five sitting days of the House after its receipt by the Minister. Either House of Parliament, within 15 sitting days of that House, after a copy of the report has been laid before it, may pass a resolution disapproving a recommendation made by the Tribunal.
Dated at Perth this 27th day of November 2009.
|W S Coleman AM
||C A Broadbent
||B J Moore|
|SALARIES AND ALLOWANCES TRIBUNAL|
REPORT ON THE REMUNERATION OF JUDGES, DISTRICT COURT JUDGES, MASTERS OF THE SUPREME COURT, MAGISTRATES, AND THE PARLIAMENTARY INSPECTOR OF THE CORRUPTION AND CRIME COMMISSION
REMUNERATION ARRANGEMENTS, INCORPORATING RECOMMENDED ALTERATIONS
Remuneration shall be payable at the following rates to Judges, Masters and Magistrates.
1 December 2009)
1 July 2010)
|President of the Court of Appeal
|Senior Puisne Judge
|Senior Judge of the Court of Appeal
|Senior Master of the Supreme Court
|Master of the Supreme Court
|Chief Judge District Court
|Senior Judge District Court
|Judge District Court
|Deputy Chief Magistrate
|Principal Registrar/Magistrate, Magistrates’ Court
|Principal Registrar/Magistrate Family Court
|Registrars/Magistrates Family Court
|Parliamentary Inspector, Corruption and Crime Commission
2. Travelling and Accommodation Allowance
Effective from 1 January 2010, where an overnight stay away from home is involved, a travelling and accommodation allowance (inclusive of accommodation, meals and incidentals) shall be payable in accordance with the relevant Australian Taxation Office reasonable benefit limit applicable from time to time and where accompanied by certification that the expense was appropriately incurred.
2.1 If the reasonably and properly incurred travelling and accommodation expenses exceed the abovementioned specified rates, the actual costs should be reimbursed. Receipts or vouchers must be provided in support of any claim for reimbursement in excess of the specified rate.
2.2 Claims for overnight stays in the Perth metropolitan area should be subject in each case to the approval of the relevant Chief Judicial Officer.
2.3 Part payment of travelling and accommodation allowances shall apply in the following circumstances:
2.3.1 Where the Judge, Master or Magistrate is accommodated in private, non-commercial accommodation, such as the home of a family member or friend, a rate of one third of the specified rate shall be payable.
2.3.2 Where the cost of commercial accommodation is met by an entity other than the Judge, Master or Magistrate, an allowance shall be payable in accordance with the relevant Australian Taxation Office reasonable benefit limit for meals and incidentals applicable from time to time and where accompanied by certification that the expense was appropriately incurred.
2.3.3 Where in the case of commercial accommodation referred to in 2.3.2 above, the cost of a meal or meals is met by an entity other than the Judge, Master or Magistrate, the amount of travelling allowance shall be reduced by the relevant amount(s) referred to in the preceding paragraph.
3. Motor Vehicles
The following arrangements apply or continue to apply, as the case may be, to the entitlement of each Judge, Master and full-time Magistrate to the provision of a fully maintained motor vehicle for business and private use.
3.1 Judges, Masters and the Chief Magistrate are entitled to the provision of a prestige vehicle, selected from the Government's Common Use Contract no. 012A1994, Items 1008 (Prestige Class) and 1009 (Restricted Prestige Class), as amended from time to time
3.2 Magistrates are entitled to the provision of a prestige vehicle selected from Item 1008 (Prestige Class), as amended from time to time
3.3 Vehicles with supercharged or V8 engines are not included. Turbo charged engines with a capacity greater than 3.0 litres are not included. The availability of a GMH Caprice model is restricted to the Chief Justice.
3.4 Judges, Masters, the Chief Magistrate and Magistrates may choose any vehicle and accessories in the Common Use Contract the total cost of which does not exceed the maximum cost of accessing a vehicle to which an entitlement exists in the relevant Prestige Class. The total cost will be based on individual usage patterns. Each lease should be tailored to achieve the most cost-effective arrangement, but with the maximum lease term being two years, and include any standard accessories (including a tow bar or, for those entitled to a prestige vehicle selected from Item 1009, also a sunroof). Where the total cost of the chosen vehicle and accessories (excluding the standard ones referred to in this paragraph) exceeds the maximum cost of accessing a vehicle to which an entitlement exists in the relevant Prestige Class, the additional cost must be borne by the individual. This includes the purchase cost of any accessories and the installation cost and removal costs if required before disposal of the vehicle.
3.5 The relevant Chief Judicial Officer must approve the selection of the vehicle and approve that the provision of a 4-wheel drive vehicle and factory fitted “roo” bar is substantiated by operational need. Four wheel drive vehicles shall be of a standard, the cost of which does not exceed the more expensive of the Toyota Prado GXL Auto 3.0litre Turbo Diesel or the Nissan Patrol ST Auto 3.0litre Turbo Diesel fitted with “roo” bar (air bag compliant). This includes the purchase cost of any accessories and the installation cost and removal cost if required before disposal of the vehicle.
3.6 All vehicles (being part of the Government-owned State Fleet) should be managed in accordance with the policies and conditions established and amended from time to time by the Department of Treasury and Finance (the effective owner of the State Fleet). Applicable terms and conditions are currently set out in the document "State Fleet - Agency General Agreement".
3.7 For the Magistrate resident in Kununurra, use of the Government provided vehicle is permitted to and from Darwin for periods of up to seven days under the same conditions as if the vehicle were in Western Australia. Under the State Fleet – Agency General Agreement, office holders are required to seek approval from State Fleet for travel outside Western Australia for periods of seven days or more.
3.8 Selection of appropriate vehicles should be subject to consultation between the Department of the Attorney General (as the department administratively supporting the Courts and therefore the "Agency" responsible for managing the leasing arrangements for vehicles provided to Judges, Masters and Magistrates) and the relevant Court. Although the cost of the vehicles is centrally funded, as a consequence of it being an emolument recommended under the Salaries and Allowances Act 1975, the area remains an administrative responsibility of the Department to manage in a cost effective manner.
3.9 Where a Magistrate is employed on a part time basis, a pro rata amount should be added to the remuneration in lieu of a motor vehicle. For that purpose, the full value of the vehicle is assessed at $24,000 per annum.
3.10 Where an acting Magistrate is employed for less than two years, a pro rata amount should be added to the remuneration in lieu of a motor vehicle. For this purpose, the full value of the vehicle is assessed at $24,000 per annum.
Dated at Perth this 27th day of November 2009.
|W S Coleman AM
||C A Broadbent
||B J Moore|
|SALARIES AND ALLOWANCES TRIBUNAL|