Most Australian judges are remunerated through a package of benefits that includes salary during their years of judicial service, a judicial pension paid during their years of retirement, and a spousal pension paid to a judge's surviving spouse until the spouse's death. These non-contributory pensions are calculated as a proportion of the current judicial salary and their cost is rising rapidly. The unfunded liability at 30 June 2008 amounted to $586 million for federal judges alone, an increase of 23 per cent on the liability just three years earlier. Substantial increases in the life expectancy of Australians over the next 40-50 years will impose a very significant strain on the current system of judicial remuneration. This is because the judicial pension and the spousal pension will continue to rise substantially, while the period of judicial service remains constrained, at the lower end, by the need to acquire legal skills prior to judicial appointment; and at the upper end, by mandatory retirement of judges at 70 or 72 years.
This paper develops two metrics for measuring how the cost of judges changes under different assumptions about their age of appointment and retirement, and under different conditions about life expectancy of judges and their spouses. Three changes to the law will help to address the long term pressures of demographic change, namely: (a) increasing the maximum retirement age of judges; (b) increasing the minimum age at which judges qualify for the judicial pension; and (c) increasing the minimum years of service required to qualify for the judicial pension. Consistently with the core value of judicial independence, the second and third changes should be put in place for new judicial appointees only.
The paper appears in (2011) 39 Federal Law Review 33 and is available for download here.
Speaker: Professor Brian Opeskin ( Macquarie University)
Commentators: Sir Anthony Mason AC KBE QC and Professor Michael Lavarch (Dean, Faculty of Law, Queensland Institute of Technology)
Chair: Professor Andrew Lynch (University of New south Wales)
Venue: Court 18A, Federal Court
Address: Queens Square, Sydney 2000 NSW