Govt’s super tax changes risk judicial recruitment, independence

The Federal Government risks the recruitment of federal judges if it tampers with the taxation of their pension entitlements, according to the Law Council of Australia.

Against the background of complaints about the possible changes to the taxation treatment from both serving and retired judges, the Law Council has warned a Senate Committee that senior lawyers may be dissuaded from moving to the bench if their pension arrangements are made less attractive.

“Judicial pensions may be an important factor in enticing senior members of the legal profession to forgo often more lucrative opportunities in private practice,” the Law Council said.

“Further, as has been recognised by members of the High Court, the judicial pension also seeks to ‘reduce, if not eliminate, the financial incentive for a judge to seek to establish some new career after retirement’ as it ‘may otherwise be possible to construe what a judge does while in office as being affected by later employment prospects’,” the submission said.

The Law Council said that its policy statement strong held to the need for an independent, impartial and competent judiciary.

“In supporting this principle, the Law Council considers that the ‘term of office of judges, their independence, security, remuneration, conditions of service, pensions and the age of retirement should be adequately secured by law’,” the submission said.

“This principle also underpins subsection 72(iii) of the Australian Constitution, which provides that Parliament may not diminish the remuneration of a federal judge during their continuance in office,” it said.

“The Law Council respectfully suggests that the Senate Committee give particular consideration to the changes proposed by the Bills to the taxation of judicial pensions, how these provisions operate in relation to the stated purpose of the Bills, and the effect that these changes may have in attracting highly qualified members of the judiciary into the future,” the submission said.