Victorian Current Acts Victorian Current ActsS. 83(1) amended by No. 9468 s. 2(b).
(1) Every Judge of the Court who—
S. 83(1)(a) substituted by No. 22/1995 s. 18(1).
(a) has attained—
(i) the age of 65 years; or
S. 83(1)(a)(ii) amended by No. 39/2003 s. 3(1)(a).
(ii) in the case of a Judge appointed as a Judge of the Court before the commencement of section 18 of the Judicial Remuneration Tribunal Act 1995 , the age of 60 years; or
S. 83(1)(a)(iii) inserted by No. 39/2003 s. 3(1)(b), amended by No. 38/2008 s. 3.
(iii) in the case of a Judge to whom subsection (6)(b) or (6)(ba) applies who was appointed as a Judge of the Court after the commencement of section 18 of the Judicial Remuneration Tribunal Act 1995 but who before that commencement had service that, by force of that subsection, counts as service in the office of Judge of the Court, the age of 60 years—
and has served for not less than 10 years in the office of Judge of the Court; or
Note to s. 83(1)(a) inserted by No. 29/2015 s. 77.
Note
Section 18 of the Judicial Remuneration Tribunal Act 1995 commenced on 18 May 1995. Section 18 was repealed on 29 March 2000 by the Courts and Tribunals Legislation (Amendment) Act 2000 and the Judicial Remuneration Tribunal Act 1995 was repealed by the Judicial Entitlements Act 2015 .
S. 83(1)(aa) inserted by No. 22/1995 s. 18(1).
(aa) has served for not less than 20 years in the office of Judge of the Court; or
(b) having been appointed before he attained the age of sixty years has become afflicted with some permanent incapacity disabling him from the due execution of his office—
shall upon resignation or retirement from his office be entitled to a pension payable fortnightly at the rate per annum of 60 per centum of the annual salary for the time being applicable to the office that he held immediately before his retirement.
Note to s. 83(1) inserted by No. 5/2013 s. 13(1).
Note
See sections 81D and 81F as to pension entitlements and appointment as a reserve Judge.
S. 83(1A) inserted by No. 22/1995 s. 18(2).
(1A) A Judge of the Court who—
(a) had attained the age of 60 years when appointed as a Judge of the Court; and
(b) has attained the age of 70 years—
is entitled upon resignation or retirement from office to a pension payable fortnightly at the proportion of the rate of the pension that would have been payable if he or she had served 10 years that is equal to the proportion of 10 years served as a Judge.
S. 83(1B) inserted by No. 22/1995 s. 18(2).
(1B) A Judge of the Court who—
(a) had attained the age of 60 years when appointed as a Judge of the Court; and
(b) has become afflicted with some permanent incapacity disabling him or her from the due execution of his or her office—
is entitled, upon resignation or retirement from office, to a pension payable fortnightly at the rate of the pension that would have been payable under subsection (1A) if he or she had served until attaining the age of 70 years.
S. 83(1C) inserted by No. 14/2006 s. 6, amended by No. 24/2007 s. 8(4).
(1C) A Judge of the Court who—
(a) was appointed as a Judge of the Court before the commencement of section 16 of the Judicial Remuneration Tribunal Act 1995 ; and
(b) has served for not less than 10 years in the office of Judge of the Court; and
(c) has attained the age of 60 years—
may resign in writing from his or her office before attaining the age of 65 years and then on attaining the age of 65 years shall be entitled to a pension payable fortnightly at the rate per annum of 60 per centum of the annual salary for the time being applicable to the office that he or she held immediately before his or her resignation.
S. 83(1D) inserted by No. 24/2007 s. 9(1).
(1D) A person who—
(a) having resigned from the office of Judge of the Court in the circumstances set out in subsection (1C); and
(b) before attaining the age of 65 years has become afflicted with some permanent incapacity which, had he or she not resigned, would have disabled him or her from the due execution of his or her office—
is entitled, on becoming so afflicted, to a pension payable fortnightly at the rate of the pension that would have been payable under subsection (1C) if he or she had attained the age of 65 years before becoming so afflicted.
S. 83(2) substituted by No. 9468 s. 2(c), amended by No. 46/1987 s. 6, substituted by No. 109/1994 s. 16(1), amended by No. 23/2008 s. 6(2).
(2) Upon the death—
(a) of any Judge of the Court; or
S. 83(2)(b) amended by No. 24/2007 s. 9(2).
(b) of any person who was formerly a Judge of the Court and entitled to a pension under subsection (1), (1A), (1B), (1C) or (1D)—
the partner of the Judge or former Judge is entitled, until death or marriage or until the partner becomes the domestic partner of another person, to a pension payable fortnightly at the rate of three-eighths of the annual salary for the time being payable under section 82 in respect of the office held by the Judge at the date of death or by the former Judge at the date of resignation or retirement, as the case requires.
S. 83(2A) inserted by No. 9468 s. 2(d).
(2A) Where there are eligible children of a deceased judge and no pension is otherwise payable under subsection (1) or (2) to or in respect of that judge there shall be paid to such person or persons as the Attorney-General directs a pension in respect of each eligible child at the rate of pension applicable to the child under subsection (2B).
S. 83(2B) inserted by No. 9468 s. 2(d), amended by No. 23/2008 s. 6(2)(a).
(2B) The pension applicable to each child shall be the amount of the pension that would be payable to the partner of the judge if the partner was entitled to a pension under this Part divided by four or the number of eligible children (whichever is the greater).
S. 83(2C) inserted by No. 9468 s. 2(d), amended by No. 23/2008 s. 7.
(2C) Eligible child in relation to a judge means a child adopted child or stepchild of the judge or his or her partner—
(a) who is under the age of 16 years; or
S. 83(2C)(b) amended by No. 9902 s. 2(1)(Sch. item 29).
(b) who—
(i) has attained the age of 16 years but is under the age of 25 years; and
(ii) is receiving full-time education at a school college or university.
S. 83(3) inserted by No. 46/1987 s. 6, substituted by No. 23/2008 s. 6(3).
(3) Notwithstanding subsection (2), no pension is payable to the partner of any former Judge in any case where that partner married or became the domestic partner of the former Judge after that Judge's resignation or retirement, unless in the case of marriage, the spouse was the domestic partner of the Judge immediately prior to that Judge's resignation or retirement.
S. 83(3A) inserted by No. 3/2016 s. 43(1).
(3A) If a dual commission holder resigns the office of Judge of the Court but continues in the office of Chief Judge, that person is taken not to have resigned or retired from the office of Judge of the Court for the purposes of subsections (1), (1A), (1B), (1C) and (1D).
S. 83(3B) inserted by No. 3/2016 s. 43(1).
(3B) If a dual commission holder simultaneously resigns the office of Judge of the Court and the office of Chief Judge, that person is taken not to have resigned or retired from the office of Judge of the Court for the purposes of subsections (1), (1A), (1B), (1C) and (1D), but section 14 of the County Court Act 1958 may apply if the person would otherwise be entitled to a pension under that section.
S. 83(3C) inserted by No. 3/2016 s. 43(1).
(3C) In the case of the death of a Judge of the Court who is a dual commission holder as Chief Judge, subsection (2) does not apply and section 14 of the County Court Act 1958 applies.
S. 83(3D) inserted by No. 1/2022 s. 32(1).
(3D) If a dual commission holder resigns the office of the Judge of the Court but continues in the office of Chief Magistrate, that person is taken not to have resigned or retired from the office of Judge of the Court for the purposes of subsections (1), (1A), (1B), (1C) and (1D).
S. 83(3E) inserted by No. 1/2022 s. 32(1).
(3E) If a dual commission holder simultaneously resigns the office of Judge of the Court and the office of Chief Magistrate, that person is taken not to have resigned or retired from the office of Judge of the Court for the purposes of subsections (1), (1A), (1B), (1C) and (1D), but section 10A of the Magistrates' Court Act 1989 may apply if the person would otherwise be entitled to a pension under that section.
S. 83(3F) inserted by No. 1/2022 s. 32(1).
(3F) In the case of the death of a Judge of the Court who is a dual commission holder as Chief Magistrate, subsection (2) does not apply and section 10A of the Magistrates' Court Act 1989 applies.
(4) Unless the Governor in Council by Order otherwise determines in any particular case the right of a Judge to a pension under this section—
(i) shall cease upon his accepting appointment to any judicial office in or outside Victoria; and
S. 83(4)(ia) inserted by No. 39/2003 s. 3(2), amended by No. 3/2005 s. 14(1).
(ia) shall be diminished by the amount of any pension to which he or she is entitled under the law of the Commonwealth or of another State or of the Northern Territory or the Australian Capital Territory, being a pension for which he or she qualified because of service that, by force of subsection (6)(ac) or (6)(ba), was or could have been counted as service in the office of Judge of the Court; and
S. 83(4)(ii) amended by No. 35/1996 s. 453(Sch. 1 item 11.3(a) (b)).
(ii) shall be suspended while—
he holds any office or place of profit under the Crown in right of the Commonwealth or of a State; or
he is engaged in legal practice in any State or Territory of the Commonwealth or is employed by any legal practitioner in connexion with his practice in any such State or Territory:
Provided that this subsection does not apply to or in relation to a Judge who resigned or retired before the 15th day of February, 1970.
S. 83(5) amended by No. 19/2001 s. 7.
(5) All pensions under this section or under any corresponding previous enactment and any payments of lump sums provided by the commutation of those pensions shall be payable out of the Consolidated Fund which is hereby to the necessary extent appropriated accordingly.
S. 83(6) amended by No. 63/2013 s. 58.
(6) For the purposes of this section and section 83AAA—
S. 83(6)(aa) inserted by No. 3/2005 s. 5, amended by Nos 24/2008 s. 8(a), 5/2013 s. 13(2).
(aa) if, before the repeal of section 80D by section 10 of the Courts Legislation Amendment (Reserve Judicial Officers) Act 2013 , any Judge or Associate Judge of the Court was immediately prior to his or her appointment—
(i) an acting Judge of the Court; or
(ii) an acting judge of the County Court—
his or her service as acting Judge shall count as service in the office of Judge or Associate Judge of the Court (as the case may be);
(a) if any Judge of the Court was immediately prior to his appointment Solicitor-General his service as Solicitor-General shall count as service in the office of Judge of the Court;
S. 83(6)(ab) inserted by No. 43/1994 s. 53, amended by No. 36/1995 s. 12(a)(b).
(ab) if any Judge of the Court was immediately prior to his or her appointment Director of Public Prosecutions, Chief Crown Prosecutor or a Senior Crown Prosecutor, his or her service as Director of Public Prosecutions, Chief Crown Prosecutor or a Senior Crown Prosecutor shall count as service in the office of Judge of the Court;
S. 83(6)(ac) inserted by No. 3/2005 s. 14(2).
(ac) if any Judge of the Court was immediately prior to his or her appointment—
S. 83(6)(ac)(i) amended by No. 24/2008 s. 8(b)(i).
(i) a Master or Associate Judge of the Court; or
S. 83(6)(ac)(ii) amended by Nos 24/2008 s. 8(b)(ii), 29/2015 s. 56(2).
(ii) a master of the County Court or an associate judge of the County Court or a master or associate judge (however described) of a court of another State, the Northern Territory or the Australian Capital Territory, other than a Local Court, Magistrates' Court or equivalent court—
his or her service as such shall count as service in the office of Judge of the Court;
S. 83(6)(ad) inserted by No. 28/2013 s. 5.
(ad) if any Judge of the Court was immediately prior to his or her appointment the Commissioner within the meaning of the Independent Broad-based Anti-corruption Commission Act 2011 or the Inspector within the meaning of the Victorian Inspectorate Act 2011 , his or her service as Commissioner or Inspector, as the case requires, shall count as service in the office of Judge of the Court;
(b) if any Judge of the Court was immediately prior to his appointment a Judge of the County Court his service as a Judge of the County Court or of County Courts shall count as service in the office of Judge of the Court;
S. 83(6)(baa) inserted by No. 29/2015 s. 56(1).
(baa) if any Judge of the Court was immediately prior to the Judge's appointment Chief Magistrate and the appointment as Chief Magistrate was made on or after 6 March 2001, that person's service as Chief Magistrate shall count as service in the office of Judge of the Court;
S. 83(6)(ba) inserted by No. 39/2003 s. 3(3).
(ba) if any Judge of the Court was immediately prior to his or her appointment—
S. 83(6)(ba)(i) amended by No. 29/2015 s. 56(3).
(i) a judge of the High Court of Australia or of a court created by the Parliament of the Commonwealth, other than the Federal Circuit Court of Australia; or
S. 83(6)(ba)(ii) amended by No. 29/2015 s. 56(4).
(ii) a judge of a court of another State or of the Northern Territory or the Australian Capital Territory, other than a Local Court, Magistrates' Court or equivalent court—
his or her service as such a judge shall count as service in the office of Judge of the Court;
S. 83(6)(bb) inserted by No. 3/2016 s. 43(2).
(bb) if a Judge of the Court is a dual commission holder as Chief Judge, the Judge is taken to not hold the office of Judge of the Court during the period of holding the dual commission when counting service in the office of Judge of the Court;
S. 83(6)(bc) inserted by No. 3/2016 s. 43(2).
(bc) if a Judge of the Court is a dual commission holder as Chief Judge, the person's service in the office of judge of the County Court, whilst a dual commission holder, shall count as service in the office of Judge of the Court;
S. 83(6)(bd) inserted by No. 1/2022 s. 32(2).
(bd) if a Judge of the Court is a dual commission holder as Chief Magistrate, the Judge is taken to not hold the office of Judge of the Court during the period of holding the dual commission when counting service in the office of Judge of the Court;
S. 83(6)(be) inserted by No. 1/2022 s. 32(2).
(be) if a Judge of the Court is a dual commission holder as Chief Magistrate, the person's service in the office of Chief Magistrate, whilst a dual commission holder, shall count as service in the office of Judge of the Court;
S. 83(6)(c) amended by No. 16/1986 s. 4(c).
(c) any reference to retirement of a Judge of the Court shall be deemed to be a reference to his commission ceasing to be in force in accordance with section 77(4).
S. 83(6A) inserted by No. 30/2005
s. 4,
amended by No. 29/2015 s. 56(5).
(6A) For the purposes of subsection (6)(ab), if a Judge of the Court who immediately prior to his or her appointment held the office of Director of Public Prosecutions, Chief Crown Prosecutor or a Senior Crown Prosecutor (a relevant office ) had also held another one or more of those relevant offices immediately prior to, or successively prior to, the person's appointment to the last relevant office held by that person, then that person's service in that other relevant office or those other relevant offices counts as service in the last of the relevant offices held by the person.
S. 83(6B) inserted by No. 29/2015 s. 56(6).
(6B) Without limiting subsection (6A), for the purposes of subsections (6) and (6A), if a Judge of the Court who held a recognised service office immediately prior to the Judge's appointment had also held another one or more recognised service offices immediately prior to, or successively prior to, that person's appointment to the last recognised service office held by that person, then that person's service in that other recognised service office or those other recognised service offices counts as service in the last recognised service office held by that person.
S. 83(6C) inserted by No. 29/2015 s. 56(6).
(6C) For the purposes of this section—
"recognised service office" means an office specified in subsection (6) or (6A) as counting as service in the office of Judge of the Court.
S. 83(7) inserted by No. 109/1994 s. 16(2), amended by No. 23/2008 s. 6(2)(a).
(7) A reference in this section to the annual salary for the time being applicable or payable in respect of an office held immediately before retirement or at the date of death, resignation or retirement is, in relation to a puisne judge who resigned or retired before the commencement of section 16 of the Constitution (Court of Appeal) Act 1994 or the partner of such a puisne judge, a reference to the annual salary for the time being payable under section 82(2).
S. 83(8) inserted by No. 23/2008 s. 8.
(8) For the purpose of regulation 65 of the Family Law (Superannuation) Regulations 2001 of the Commonwealth, the Minister on the advice of an actuary appointed by the Minister may from time to time determine the accrued benefit multiple.
S. 83(9) inserted by No. 23/2008 s. 8, amended by No. 38/2009 s. 19(1).
(9) Subject to subsections (13) and (14), the Minister must comply with subsections (11) and (12) if—
(a) a superannuation agreement which provides for a payment split; or
(b) a flag lifting agreement which provides for a payment split; or
(c) a splitting order—
is served on the Minister under Part VIIIB or VIIIAB of the Family Law Act 1975 of the Commonwealth.
S. 83(10) inserted by No. 23/2008 s. 8.
(10) Subsections (11) and (12) also apply to—
(a) a superannuation agreement which provides for a payment split; or
(b) a flag lifting agreement which provides for a payment split; or
(c) a splitting order—
which was served on the Minister under Part VIIIB of the Commonwealth Family Law Act 1975 before the commencement of section 3 of the Constitution Amendment (Judicial Pensions) Act 2008 if the non-member spouse's entitlements in respect of the superannuation interest have not been satisfied as at that commencement.
S. 83(10A) inserted by No. 38/2009 s. 19(2).
(10A) This section also applies to—
(a) a superannuation agreement which provides for a payment split; or
(b) a flag lifting agreement which provides for a payment split; or
(c) a splitting order—
which was served on the Minister under Part VIIIAB of the Commonwealth Family Law Act 1975 before the commencement of section 19 of the Superannuation Legislation Amendment Act 2009 if the non-member spouse's entitlements in respect of the superannuation interest have not been satisfied as at that commencement.
S. 83(11) inserted by No. 23/2008 s. 8.
(11) If the non-member spouse has not satisfied a relevant condition of release and the member spouse is not receiving a pension under this Act, the Minister must if the value of the non-member spouse's entitlement in respect of the superannuation interest at the particular time does not exceed the value of the member spouse's interest in the Fund—
(a) transfer a lump sum amount equal to the value of the non-member spouse's entitlement in respect of the superannuation interest at the time of the payment to an eligible superannuation plan nominated in writing by the non-member spouse within the specified period; or
(b) if the non-member spouse fails to nominate in writing an eligible superannuation plan within the specified period, transfer a lump sum amount equal to the value of the non-member spouse's entitlement in respect of the superannuation interest at the time of the payment to an eligible rollover fund selected by the Minister.
S. 83(12) inserted by No. 23/2008 s. 8.
(12) If the non-member spouse has satisfied a relevant condition of release or the member spouse is receiving a pension under this Act, the Minister must if the value of the non-member spouse's entitlement in respect of the superannuation interest at the particular time does not exceed the value of the member spouse's interest in the Fund—
(a) if so requested in writing by the non-member spouse within the specified period, pay the non-member spouse a lump sum amount equal to the value of the non-member spouse's entitlement in respect of the superannuation interest at the time of the payment; or
(b) if so requested in writing by the non-member spouse within the specified period, transfer a lump sum amount equal to the value of the non-member spouse's entitlement in respect of the superannuation interest at the time of the payment to an eligible superannuation plan nominated in writing by the non-member spouse; or
(c) if no request is received from the non-member spouse within the specified period, transfer a lump sum amount equal to the value of the non-member spouse's entitlement in respect of the superannuation interest at the time of the payment to an eligible rollover fund selected by the Minister.
S. 83(13) inserted by No. 23/2008 s. 8.
(13) Subsections (11) and (12) do not apply if—
(a) the member spouse's superannuation interest is an unsplittable interest; or
(b) a payment flag is operating in respect of the member spouse's superannuation interest; or
(c) the non-member spouse has served a waiver notice on the Minister under section 90MZA of the Family Law Act 1975 of the Commonwealth in respect of the member spouse's superannuation interest; or
(d) the member spouse's superannuation interest is a payment that is not a splittable payment under Part 2 of the Family Law (Superannuation) Regulations 2001 of the Commonwealth.
S. 83(14) inserted by No. 23/2008 s. 8.
(14) If the member spouse's superannuation interest is a pension under this Act due to a disability which is a splittable payment, the Minister may determine that subsections (11) and (12) do not apply.
S. 83(15) inserted by No. 23/2008 s. 8.
(15) If the non-member spouse serves a waiver notice on the Minister under section 90MZA of the Family Law Act 1975 of the Commonwealth in respect of the member spouse's superannuation interest, the Minister may make a payment to the non-member spouse not exceeding the value at a particular time of the non-member spouse's entitlement in respect of the superannuation interest less any payments previously made by the Minister to the non-member spouse in accordance with this section.
S. 83(16) inserted by No. 23/2008 s. 8.
(16) Despite anything to the contrary in this Act, if under subsection (11), (12) or (15) an amount is paid by the Minister to a non-member spouse or transferred by the Minister on behalf of a non-member spouse, the benefit of a member spouse must be reduced by the Minister in accordance with a methodology approved by the Minister, on the advice of an actuary appointed by the Minister.
S. 83(17) inserted by No. 23/2008 s. 8.
(17) On the application of an eligible person within the meaning of section 90MZB(8) of the Family Law Act 1975 of the Commonwealth, the Minister may provide information additional to the information required to be provided under section 90MZB of that Act if the Minister considers that the additional information is necessary to understand the member spouse's benefit entitlements.
S. 83(18) inserted by No. 23/2008 s. 8.
(18) The entitlement of a person to convert or commute a benefit or pension under this Act is not affected by the making of a payment or transfer under subsection (11), (12) or (15).
S. 83(19) inserted by No. 23/2008 s. 8.
(19) The Minister may charge reasonable fees in respect of—
(a) a payment split;
(b) a payment flag;
(c) flag lifting under a flag lifting agreement that does not provide for a payment split;
(d) an order under section 90MM of the Family Law Act 1975 of the Commonwealth terminating the operation of a payment flag;
(e) an application under section 90MZB of the Family Law Act 1975 of the Commonwealth for information about a superannuation interest;
(f) any other thing done by the Minister in relation to a superannuation interest covered by a superannuation agreement, flag lifting agreement or splitting order;
(g) the provision of information under subsection (17).
S. 83(20) inserted by No. 23/2008 s. 8.
(20) Fees charged under subsection (19) must not exceed the maximum levels of fees fixed by the Minister for the purposes of this section by notice published in the Government Gazette.
S. 83(21) inserted by No. 23/2008 s. 8.
(21) If the Minister charges a fee under subsection (19), the fee is payable—
(a) unless paragraph (b) applies, in the case of subsection (19)(a), (19)(b), (19)(c), (19)(d) or (19)(f), by the member spouse and the non-member spouse in equal parts;
(b) if the fee is in respect of a payment split under which the non-member spouse is entitled to be paid the whole of the amount of each splittable payment that becomes payable, by the non-member spouse;
(c) in the case of subsection (19)(e) or (19)(g), by the person who made the application.
S. 83(22) inserted by No. 23/2008 s. 8.
(22) For the purposes of this section, the Minister may, with such modifications as are necessary, adopt any specified standards made by Order in Council under section 92A of the State Superannuation Act 1988 for the purposes of Part 7A of that Act.
S. 83(23) inserted by No. 16/2016 s. 149.
(23) For the purposes of this section, a reference to the resignation or retirement of a Judge of the Court includes a reference to the removal of a Judge from office by the Governor in Council under section 87AAB on the ground of proved incapacity if both Houses of the Parliament pray for the removal solely on the ground of proved incapacity.
S. 83(24) inserted by No. 16/2016 s. 149.
(24) A removal referred to in subsection (23) is taken to be a resignation or retirement due to the Judge of the Court having become afflicted with some permanent incapacity disabling the Judge from the due execution of the Judge's office.
S. 83AAA inserted by No. 63/2013 s. 59.