ACT magistrates have kicked up a fuss over the superannuation levy. Before that, all federal judges kicked up a fuss about it and the Government caved in.
The judges argued that the Constitution says federal judges “”shall receive such remuneration as the Parliament may fix; but the remuneration shall not be diminished during continuance in office”.
It means the government has no power to cut their pay. The government agreed that the super levy amounts to a cut in pay. The super levy is 15 per cent of funds going in to a super fund, or an equivalent amount taken from the salary of people, like judges, who do not contribute to a super fund but get a percentage of salary after retirement, rather than some amount based on how much you have put in.
The Constitution prohibits pay cuts for judges because you cannot have the executive government holding a threat over judges because they might lose their independence. They have to be fearless and independent.
This is the doctrine of separation of powers. Parliament legislates in broad terms for all; the executive makes decisions about putting those laws into effect and the judiciary resolves disputes arising out of the way the executive applies the law and resolves disputes between citizens. For example, Parliament passes a law saying everyone over 65 gets a pension. The executive government prints application forms and vets birth certificates and grants or refuses pensions. The judiciary might decide whether the government unfairly refused Bill Bloggs a pension because he could not find his Estonian birth certificate and could not get another one.
The separation of powers is important for individual liberty. You can go to the judges to test the meaning of legislation passed by the legislature and to test the way it is applied by the executive government. This prevents the executive from abusing its power.
Also the three powers apply to each other. Members of the executive must obey the law laid down by the legislature. And they can be brought to book before the judiciary. They cannot do what they please, like a dictator ordering people to be killed or locked up. So, too, the law applies to members of the legislature and judiciary. The separation of powers is one of the greatest advances of governance and liberty since the Middle Ages. It must be jealously guarded.
ACT magistrates say that they are in a similar position as the judges because they, too, have a judicial function. They are right on this score. The president of the Australian Magistrates Association, Michael Somes, has warned that magistrates might disqualify themselves from hearing cases involving the Commonwealth because there is a conflict of interest.
In the ACT, the ACT magistrates could argue that something akin to the constitutional ban on pay cuts applies to them. Section 73 (3A) of the federal ACT (Self-Government) Act uses the same language as the Constitution for magistrates’ remuneration. But it is always open for the Federal Parliament to change the application of its own laws; something it cannot do with the Constitution.
None the less, in principle the magistrates should be in the same boat as the judges.
But the thing I question is whether the judges should have been granted the exemption from the super levy in the first place. Does the doctrine of separation of powers and no reduction in remuneration run to preventing the legislature and executive from applying a general tax law to judges and magistrates? I think not.
Sure, it means the judges and magistrates get less take-home pay, but how is that any different from any other tax increase? If there is a GST, or an income tax rise, would that be an unconstitutional diminution in judicial remuneration? I think not.
The separation of powers is an important principle. But the principle that the law applies to all is equally important. The super levy is a tax that applies to everyone, not an intimidatory pay cut directed solely at the judiciary.
The Government should test the magistrates’ position.