Own Motion Recommendations to the Attorney‐General

Own Motion Recommendations to the Attorney‐General

September 2021 Report

Recommendations to the Attorney‐General September 2021

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Contents Panel foreword ....................................................................................................................................... 3

1. Recommendations and Observations ............................................................................................. 4

1.1 Summary of recommendations .............................................................................................. 4

1.2 Summary of observations ....................................................................................................... 4

1.3 Summary of rejected proposals .............................................................................................. 5

2 Background ..................................................................................................................................... 6

2.1 Functions of the Panel ............................................................................................................ 6

2.2 Legislative requirements ......................................................................................................... 6

2.3 Methodology ........................................................................................................................... 7

3 Recommendations .......................................................................................................................... 8

3.1 Annual leave for magistrates .................................................................................................. 8

3.1.1 Recommendation 1a ....................................................................................................... 8

3.1.2 Recommendation 1b ....................................................................................................... 8

3.1.3 Proposal put to the Panel ............................................................................................... 8

3.1.4 Proposed change to current entitlement ....................................................................... 8

3.1.5 Options and Evidence ..................................................................................................... 8

3.1.6 Comparisons ................................................................................................................. 10

3.1.7 Cost implications ........................................................................................................... 10

3.2 Coroners rostered on‐call afterhours ................................................................................... 11

3.2.1 Recommendation 2 ....................................................................................................... 11

3.2.2 Proposal put to Panel .................................................................................................... 11

3.2.3 Proposed change to current entitlement ..................................................................... 11

3.2.4 Options and Evidence ................................................................................................... 11

3.2.5 Comparisons ................................................................................................................. 12


3.3 Professional development entitlements for reserve magistrates ........................................ 12

3.3.1 Recommendation 3 ....................................................................................................... 12

3.3.2 Proposal put to the Panel ............................................................................................. 12



3.3.5 Comparisons ................................................................................................................. 13


3.4 Judges’ prior service as a judicial registrar contribute to long service leave entitlement

eligibility ............................................................................................................................................ 13


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3.4.1 Recommendation 4 ....................................................................................................... 13




3.4.5 Comparisons ................................................................................................................. 14


4 Observations ................................................................................................................................. 16

4.1 Entitlements for judicial registrars ........................................................................................ 16

4.1.1 Observation 1 ................................................................................................................ 16


4.1.3 Background ................................................................................................................... 16

4.2 Statutory disability scheme, superannuation, and pension entitlements for magistrates .. 17

4.2.1 Observation 2 ................................................................................................................ 17


4.2.3 Background ................................................................................................................... 17

4.3 Conditions and entitlements of VCAT members................................................................... 17

4.3.1 Observation 3 ................................................................................................................ 17


4.3.3 Background ................................................................................................................... 17

4.4 Conditions of employment – judicial officers’ working from home expenses ..................... 18

4.4.1 Observation 4 ................................................................................................................ 18


4.4.3 Background ................................................................................................................... 18

4.5 Conditions of employment – home privacy and security expenses ..................................... 18

4.5.1 Observation 5 ................................................................................................................ 18


4.5.3 Background ................................................................................................................... 18

4.6 Motor vehicle allowance for associate judges of the Supreme Court .................................. 19

4.6.1 Observation 6 ................................................................................................................ 19


4.6.3 Background ................................................................................................................... 19

5 Rejected proposal ......................................................................................................................... 20

5.1 Increase magistrates’ long service leave .............................................................................. 20


5.1.2 Rationale ....................................................................................................................... 20

Appendix 1 – Submission from Department of Treasury and Finance ................................................. 21


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Panel foreword The Judicial Entitlements Panel’s role, as specified in the Judicial Entitlements Act 2015, is to provide

advice to the Attorney‐General on the entitlements of the State judiciary. The Panel would like to

thank the Attorney‐General for the opportunity to undertake this important work.

This Own Motion Recommendation Report (Report) is the first of the Panel’s second term.

The ongoing COVID‐19 Pandemic continues to have deep effects across the economy and all

workplaces. In many instances, it has accelerated change, with some associated impacts on

entitlements. These are referenced where relevant in this Report.

This Panel initiated its work with an extensive round of consultations with a range of stakeholders,

including but not limited to the Heads and Chief Executive Officers of each of the Victorian

jurisdictions, and Court Services Victoria. These consultations, the subsequent written submissions

from each jurisdiction (with supporting evidence) and the Department of Treasury and Finance, and

timely responses to further information requests, were all valuable inputs in finalising the Panel’s

deliberations. The Panel would like to thank all for their cooperation.

This Report makes four recommendations and six observations. It also details the proposed

recommendation that has not been accepted. The Panel’s analysis is presented taking into account

the principles of equity, consistency and fiscal capacity.

The Panel would like to record its appreciation to the former chair, Bruce Hartnett AM and former

Panel member Ilona Charles, for their significant contributions over their terms. The Panel would

also like to thank the various members of the Panel Secretariat for their ongoing support.

(Dr) Lynne Williams AM

Chairperson

Ms Kathleen Townsend

Panel Member


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1. Recommendations and Observations After extensive consultation with the courts, and consideration of associated supporting evidence,

this Report contains four recommendations.

Own Motion Recommendation Reports are limited to consideration of leave entitlements,

allowances and benefits. A number of matters were raised with the Judicial Entitlements Panel

(Panel) beyond this scope. Accordingly, this Report also contains six observations to highlight these

matters of importance to the courts.

1.1 Summary of recommendations The Panel makes the following recommendations:

• Recommendation 1a – that annual leave for magistrates be increased from four weeks to

six weeks. This increase will apply to those appointed after the certificate is gazetted, with

this leave to be used in the year granted and not accrue if the full six weeks is not used in a

12 month period. Magistrates appointed before the gazettal of the certificate may move to

these new arrangements at any time after gazettal, and their current leave balance will be

preserved. However, magistrates will cease to accrue additional leave if they fail to use the

full six weeks in a 12 month period.

• Recommendation 1b – if Recommendation 1a is accepted, the entitlement certificate

dated 19 July 2007 should be updated to preserve magistrates’ entitlement to purchase

additional leave. The Panel recommends this entitlement be capped at a combined total of

eight weeks annual leave.

• Recommendation 2 – that entitlements for coroners and the State Coroner be altered to

recognise an additional five days of annual leave, with the proviso that this leave is

used within 12 months and will not accrue, be carried forward, paid out, or carried over to

another judicial or public office.

• Recommendation 3 – that reserve magistrates:

o receive a percentage of the professional development allowance, proportionate to

the number of sitting days undertaken by the reserve magistrate in the previous

financial year, and

o time spent attending professional development days approved by the Chief

Magistrate, be treated as sitting days for remuneration purposes.

• Recommendation 4 – that when a judicial registrar is appointed as a judge, their prior

service as a judicial registrar be recognised for long service leave purposes.

1.2 Summary of observations A number of matters were put to the Panel, but are beyond the Panel’s authority. Accordingly, the

Panel makes the following observations:

• Observation 1 – that there be a review of the terms and conditions of judicial registrars in

all courts.

• Observation 2 – noting the work undertaken by Court Services Victoria (CSV) since the

Panel’s 2020 Report, that CSV continue its advocacy for a broader review of magistrates’

superannuation and pension entitlements with stakeholders and the Attorney‐General.

• Observation 3 – that there be a review of terms and conditions of VCAT members.

• Observation 4 – that an assessment of the working from home set up of all judicial officers

be undertaken, possibly by the Courts Council, to ensure the home set up meets

appropriate Work Health and Safety (WHS) and cyber safety standards.


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• Observation 5 – that an assessment of judicial officers’ home security measures be

undertaken, possibly by the Courts Council, to ensure the safety of the judicial officers.

• Observation 6 – the Panel encourages the Courts Council to consider undertaking an

examination of judicial entitlements relating to motor vehicle allowances and to determine

how to modify judicial salary arrangements to enable salary packaging for cars. This

approach provides the judiciary with greater flexibility, and is also widely used across the

private sector. This would result in a more contemporary and less administratively

burdensome scheme.

1.3 Summary of rejected proposals The Panel rejected the following proposal:

• That magistrates’ long service leave be increased from three months to six‐months,

accrued every 10 years of service.


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2 Background

2.1 Functions of the Panel The Panel is established under the Judicial Entitlements Act 2015 (the Act). Under the Act, the Panel

is responsible for:

• making own motion recommendations to the Attorney‐General in relation to leave

entitlements, accrued leave, allowances and benefits provided to or on behalf of judicial

officers,

• providing advisory opinions in relation to entitlements of judicial officers, judicial registrars

and non‐judicial members of the Victorian Civil and Administrative Tribunal (VCAT), when

requested by the Attorney‐General, and

• providing advisory opinions in relation to any matter relating to leave entitlements,

accrued leave, allowances and benefits provided to or on behalf of judicial officers, judicial

registrars, and non‐judicial members of VCAT, when requested by the Attorney General.

The Panel is required to act in an independent, impartial, and timely manner.

2.2 Legislative requirements The Panel must provide at least one Report to the Attorney‐General every four years and include

recommendations about the judiciary’s work‐related expenses.

Prior to presenting its Report to the Attorney‐General, the Panel must call for submissions from

stakeholders. In addition, the Department of Treasury and Finance (DTF) must provide information

on the relevant economic and remuneration factors in Victoria.

Reports must include the Panel’s reasons for deciding to make or not to make recommendations on

proposals put forward in submissions received.

When making recommendations, the Panel must consider the following factors:

• the importance of the judicial function to the community,

• the need to maintain the standing of the judiciary in the community,

• the need to attract and retain suitably qualified candidates to judicial office,

• the level and nature of conditions of service of judicial officers in other Australian

jurisdictions,

• movement in the Consumer Price Index,

• the level and nature of conditions in other public offices in Victoria,

• how any proposed own motion recommendation affects the total remuneration packages

of judicial officers,

• relevant economic and remuneration factors in Victoria, including the capacity of the State

to meet any proposal for more generous conditions of service, and

• any other relevant matter.

The Attorney‐General must table the Panel’s Report in each House of Parliament within 10 sitting

days of receiving it. The Attorney‐General must then respond to the Report by tabling a

Recommendation Statement (Statement) before each House of Parliament within four months. This

Statement specifies whether the Attorney‐General intends to vary, accept (in part or full) or not

accept the Panel’s recommendations, and the reasons for doing so.

The Attorney‐General issues entitlement certificates that give effect to the recommendations in the

Statement.


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2.3 Methodology In determining the issues which would form the substance of this Report, the Panel commenced by

undertaking an extensive consultation exercise. This new approach was introduced by the Panel to

ensure it had the best available information to facilitate its decision‐making.

All panel members met with the Head of Jurisdiction and the Chief Executive Officers (CEOs) of the:

• Supreme Court of Victoria,

• County Court of Victoria,

• Magistrates’ Court of Victoria,

• Children’s Court of Victoria,

• Coroners Court of Victoria, and

• Victorian Civil and Administrative Tribunal.

As well, the Panel met with the CEOs and/or executives of CSV, the Victorian Public Sector

Commission, the Department of Treasury and Finance (DTF), Industrial Relations Victoria and the

Victorian Independent Remuneration Tribunal. Where possible, comparisons are included in support

of the recommendations in this Report.

The Panel invited and received submissions from each court, and from VCAT, CSV and DTF.

Following analysis of these submissions and further research, the Panel determined its

recommendations and observations. The recommendations are supported by evidence. Other

options are canvassed and where relevant, costing information is provided for the

recommendations.

The Panel has also made observations on several issues raised by jurisdictions. While these concerns

are beyond the authority of the Panel as defined in the Act, they are brought to the Attorney‐

General’s attention as they are of concern to stakeholders and have impact on both the

performance and well‐being of the judiciary.

In this Report, the Panel has distinguished between an entitlement (something that is made available

but is optional for the receiver to take up) and a condition of work (an obligation that must be

provided by an employer).

Recommendations proposed in the submissions which the Panel decided not to support are either

referenced in the proposed recommendations and observations, or summarised in Section 5. These

include the Panel’s associated reasons.

As required under the Act, the Panel invited DTF to make a submission to the Panel on this Report

providing:

a) information about relevant economic and remuneration factors in Victoria, and

b) any other relevant information that the nominated public service body Head (i.e. DTF)

considers appropriate.

This submission (Appendix 1) was received on 20 September 2021 and provides an overview of the

economic outlook for Victoria and the Government’s wages policy.


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3 Recommendations

3.1 Annual leave for magistrates

3.1.1 Recommendation 1a That annual leave for magistrates be increased from four weeks to six weeks. This increase will

apply to those appointed after the certificate is gazetted, with this leave to be used in the year

granted and not accrue if the full six weeks is not used in a 12 month period. Magistrates

appointed before the gazettal of the certificate may move to these new arrangements at any time

after gazettal, and their current leave balance will be preserved. However, magistrates will cease

to accrue additional leave if they fail to use the full six weeks in a 12 month period.

3.1.2 Recommendation 1b If Recommendation 1a is accepted, the entitlement certificate dated 19 July 2007 should be

updated to preserve magistrates’ entitlement to purchase additional leave. The Panel

recommends this entitlement be capped at a combined total of eight weeks annual leave.

3.1.3 Proposal put to the Panel The Magistrates’ Court proposed an increase in annual leave from four weeks to eight weeks for all

magistrates.

3.1.4 Proposed change to current entitlement Magistrates are currently entitled to four weeks’ annual leave. Magistrates are ‘on call’ between the

Christmas break and the first sitting day of the calendar year. Magistrates are also able to access the

purchased leave scheme through salary sacrifice. The Panel’s recommendation is to increase the

leave from four to six weeks.

If magistrates’ leave is increased, the Panel recommends the entitlement certificate relating to the

purchased leave scheme also be updated, capping total combined leave entitlements at eight weeks.

This means magistrates subject to the proposed scheme (six weeks leave) would be able to purchase

up to an additional two weeks leave. While magistrates who remain on the current scheme (four

weeks leave) would be able to purchase up to an additional four weeks leave.

3.1.5 Options and Evidence In its 2018 and 2020 Own Motion Recommendation Reports, the Panel recommended magistrates’

annual leave be increased from four to six weeks. Neither of these recommendations were accepted

by Government. The Panel is making this recommendation again on the basis of several additional

factors.

3.1.5.1 New empirical evidence

Empirical evidence additional to that provided to previous Reports, and published in 2021, shows

that judicial officers in lower courts experience higher levels of stress than those in higher

jurisdictions.1 This is particularly the case for non‐specific psychological distress, anxiety, clinically

significant stress and burnout exhaustion. Australian research2 has found that magistrates are

1 Schrever, C., Hulbert, C., & Sourdin, T. (2021). Where stress presides: Predictors and correlates of stress among Australian judges and magistrates. Psychiatry, Psychology and Law, 1‐33. 2 Further research on this issue was cited in the MCV submission: Caple, D. (2019). Investigation, Analysis, Risk Assessment and Report on the Work Occupational Health and Safety of Operations of the Magistrates’ Court of Victoria: Final Report; FBG Group. (2017). Council of Magistrates: Review of Research and Evidence; Hunter, J., Kemp, R., O'Sullivan, K., & Vines, P. (2021). A fragile bastion: UNSW judicial traumatic stress study. Judicial


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reporting greater levels of workplace stress than their higher court counterparts and have a

significantly higher risk of experiencing mental health issues.

Carly Schrever, a researcher in judicial wellbeing, has provided the Panel with excerpts from

qualitative interview research that is currently being drafted for publication. In contrast to higher

court judges, magistrates identified insufficient annual leave as one cause of increasing stress levels.

Statements from magistrates include:

“… long term I think there’s a risk of burnout, and you see it. I personally can’t do this job on four weeks’ leave a year so I buy a month, sorry four weeks’ leave so I buy four weeks a year in order to give myself eight weeks… I go through the calendar and I work out how we can have a break every 8 weeks to 12 weeks maximum” “I purchase it [leave]. I think we really need longer leave in a smaller period of time – we really need sabbatical of some kind. Because it’s intense pressurised work and I don’t think leave arrangements – traditional leave arrangements are sufficient to deal with what we need to deal with. I can usually work it out over a year – but I think that really there is a point in time when you get to burnout stage”

3.1.5.2 Expanded role of magistrates

The Magistrates’ Court submitted that this Court is a continually evolving, rapidly expanding

jurisdiction. This is evidenced by the introduction of over 90 new offences since 2016.

Additionally, the Panel recognises the adverse impact of the COVID‐19 Pandemic on Court

operations that have created a significant increase in case backlog, particularly in crime and family

violence matters. This compounded the already increasing demand for hearings in the past few

years and projected demand until 2023, and could be a contributor to the relatively greater stress

among magistrates than in other courts.

3.1.5.3 Current leave usage

The Panel has been provided information that shows over the two years 2018 and 2019, magistrates

on average used around 90 per cent of their four‐week annual leave entitlements. As well, in the

corresponding period, an average of half the magistrates took purchased leave (i.e. the 48/52

option). The rate appears to be increasing and could reflect that magistrates are experiencing

greater levels of work‐related stress.

3.1.5.4 Conditions of Federal Circuit Court Judges

The Commonwealth Remuneration Tribunal (2017)3 granted Federal Circuit Court judges six weeks

annual leave, with this leave to be used in the year granted and not accrue if the full six weeks is not

used in the 12 month period. Existing Federal Circuit Court judges who were appointed prior to the

date of effect, may move to these annual leave arrangements. The model proposed by the Panel

reflects this approach.

Officers Bulletin, 33(1), 1‐7; PwC (Andrew Farr). (2019). The health and safety implications of Annual Leave entitlements of Magistrates, the access to a disability insurance scheme, and non‐entitlement to judicial pension; Schrever, C., Hulbert, C., & Sourdin, T. (2019). The psychological impact of judicial work: Australia’s first empirical research measuring judicial stress and wellbeing. Journal of Judicial Administration, 28(3), 141‐168. 3 Australian Government Remuneration Tribunal. Accessed from https://www.remtribunal.gov.au/sites/default/files/2021‐01/2017‐22%20Determination%20‐%20Remuneration%20and%20Allowances%20for%20Judicial%20and%20Related%20Offices.pdf


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Federal Circuit Court judges comprise the Commonwealth judiciary who are most comparable to

Victorian magistrates.

3.1.5.5 Summary of evidence

The Panel is of the view that these additional factors support increasing annual leave for magistrates

to six rather than eight weeks at this time.

There is increasing evidence that stress levels are correlated to insufficient annual leave, and that

increasing annual leave entitlements will mitigate stress. However, there is no evidence that

supports an increase from four to eight weeks, as opposed to four to six weeks. At this stage, the

Panel believes increasing annual leave for magistrates to six weeks, under the terms proposed,

would:

• assist health and wellbeing issues of magistrates,

• recognise the expanded role of magistrates, and

• align annual leave entitlements of magistrates with their equivalent in the Federal Circuit

Court (both in terms of the amount of leave and its usage).

Mindful of the pressures and backlog on court operations arising from the COVID‐19 Pandemic, at

this stage the Panel does not accept the proposal that magistrates’ annual leave be increased to

eight weeks. Providing an additional four weeks leave at this time would either significantly reduce

court capacity or would involve a significant cost to increase the number of magistrates.

The Panel recommends that annual leave be increased to six weeks, but that this leave must be used

within 12 months and will not accrue. New magistrates would receive leave on this basis, while

existing magistrates would be able to transition to the new arrangements at any time post gazettal.

These arrangements mirror the leave provisions for Federal Circuit Court judges. The requirement of

magistrates to use the leave within 12 months also reflects the arrangement for County Court

judges, who must use their annual leave within the calendar year.

3.1.6 Comparisons Victorian County Court and Supreme Court judges are entitled to eight weeks annual leave.

Magistrates in the Northern Territory are entitled to six weeks annual leave. While the entitlements

in Queensland and New South Wales are for four weeks, this increases to five weeks in certain

regional areas. Magistrates in New South Wales, South Australia, Tasmania and the Australian

Capital Territory are entitled to four weeks, but those in the first two States also get additional leave

associated with the Christmas/New Year period.

Judges of the Federal Circuit Court are entitled to six weeks annual leave per year, but cannot accrue

any unused leave to the next year.

3.1.7 Cost implications The cost implications of this recommendation are challenging, and complicated by the additional

pressures and backlogs caused by the ongoing Covid‐19 Pandemic.

Any additional resource requirements would be mitigated by:

• increased efficiencies in the operation of the Magistrates’ Court, including initiatives like

the Case Management System and the online hearings system,

• the use of reserve magistrates to undertake some operational work currently undertaken

by magistrates,


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• the age profile of magistrates, suggesting some would prefer to continue to accrue unused

annual leave, meaning transition to the new scheme would occur over several years, and

• potentially improved productivity and less burnout resulting from access to increased

leave.

There are currently 138 magistrates (August 2021). As such, increasing annual leave entitlements

from four to six weeks, translates into approximately six magistrates. However, for the reasons

outlined above, the Panel is of the view it would be far less than this. This is because it is unlikely the

entire cohort will transition to these new arrangements at once.

3.2 Coroners rostered on‐call afterhours

3.2.1 Recommendation 2 That entitlements for coroners and the State Coroner be altered to recognise an additional five days of annual leave, with the proviso that this leave is used within 12 months and will not accrue, be carried forward, paid out, or carried over to another judicial or public office.

3.2.2 Proposal put to Panel The Coroners Court wishes to formalise a common practice as an entitlement in the terms and

conditions of a coroner’s employment, recognising an additional five days of annual leave in

acknowledgement of the on‐call duty requirements of the role.

3.2.3 Proposed change to current entitlement The Panel recommends increasing the annual leave entitlements for coroners from four to five weeks. This additional week’s leave should be used within 12 months and will not accrue, be carried

forward, paid out, or carried over to another judicial or public office. 3.2.4 Options and Evidence The State Coroner currently grants each coroner five days’ time‐in‐lieu in recognition of the

additional duties undertaken. These duties include taking turns to be on‐call afterhours, on

weekends, public holidays and overnight. This time in lieu is to mitigate the impacts of these

additional duties on their wellbeing.

The Panel has been informed that these additional days are granted by the State Coroner and always

taken up by the coroners.

The Coroners Court submitted to the Panel that these additional duties mean that each coroner is on

call for the equivalent of an additional 65 days each year (i.e. because of the 24 hour nature of being

on‐call). This represents approximately 25 percent more days than the standard 250‐day working

year. Using the standard calculation to determine annual leave entitlements, a coroner’s working

year would attract a total of 25 days’ annual leave.

While the Panel notes that working in an on‐call capacity is typically less onerous than a full working

day, this is countered by its after‐hours requirement, impacting coroners’ wellbeing. The Coroners

Court submitted that working on‐call impedes on the downtime for coroners given that coroners are

exposed to traumatic events and material which has the potential for actual and vicarious trauma.

For these reasons, the Panel accepts the Coroners Court’s view that additional leave for the role

rather than remuneration for hours worked is appropriate compensation. The Panel submits that

formally recognising the additional leave already accessed by coroners should contribute to their

ongoing wellbeing.

As this leave is tied to the specific role of a coroner, it should be used in the year of accrual and

should not be carried forward, paid out, or carried over to another judicial or public office.


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3.2.5 Comparisons The nature of the on‐call duty requirement for coroners is unique in comparison to judicial officers in

other Courts. In comparison to magistrates who are on‐call, the obligations on coroners are more

onerous, such as the requirement to attend the scene of the accident wherever it occurs state‐wide.

The Panel understands that Western Australia compensates coroners for performance of on‐call

duties via the payment of an “On‐Call” allowance. This is not yet the case in several other

jurisdictions, but is under active consideration.

The Panel suggests if this entitlement were formalised that it only apply to those operating as

coroners in the Coroners Court. As such, it would not apply to magistrates if they leave the Coroners

Court to take up a role in another jurisdiction.

3.2.6 Cost implications The Coroners Court has advised the Panel that:

• all coroners currently take this additional five days of annual leave,

• the additional leave is already managed within the existing staffing levels – additional

staffing is not required, and

• the additional leave is covered by the Court’s existing appropriation – an increase in

appropriation is not required.

The Panel understands that as this recommendation formalises an existing practice, there would be

no additional cost associated with it.

3.3 Professional development entitlements for reserve magistrates

3.3.1 Recommendation 3 That reserve magistrates:

• receive a percentage of the professional development allowance, proportionate to the

number of sitting days undertaken by the reserve magistrate in the previous financial

year, and

• time spent attending professional development days approved by the Chief Magistrate,

be treated as sitting days for remuneration purposes.

3.3.2 Proposal put to the Panel The Magistrates’ Court proposed that reserve magistrates receive a:

• percentage of the professional development allowance, proportionate to the number of

sitting days allocated to that reserve magistrate in the course of the previous financial year,

and

• daily fee for attending any professional development days approved by the Chief

Magistrate.

3.3.3 Proposed change to current entitlement There is currently no mechanism for reserve magistrates to receive a professional development

allowance, nor any compensation for the time and the costs involved in attending professional

development sessions.

The Panel recommends entitling reserve magistrates to a percentage of the professional

development allowance based on the number of sitting days that the reserve magistrate undertook

in the previous financial year. The Panel also recommends that attendance at professional


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development sessions as approved by the Chief Magistrate, be recognised as sitting days and attract

appropriate remuneration.

3.3.4 Options and Evidence The Magistrates’ Court provided further evidence in support of the proposal it submitted to the

Panel in 2020, for reserve magistrates to receive professional development entitlements.

The Panel considers the benefits to the community from reserve magistrates having access to

continuing professional development, including having up‐to‐date knowledge and understanding of

the relevant law and practice, are significant. While the Panel had previously rejected this request in

the 2020 Own Motion Recommendation Report, the current Panel believes these benefits outweigh

previous arguments including that of a disproportionate administrative burden. There are currently

(August 2021) 31 reserve magistrates.4 The Panel considers this a significant cohort of the judiciary

(compared with the 138 magistrates) whose skills and knowledge should be subject to continuous

professional development.

The professional development allowance for judicial officers and magistrates is directly related to

salaries. The method of calculation proposed by the Magistrates’ Court for reserve magistrates

mirrors this approach.

The provision of their daily allowance to attend approved professional development sessions

compensates magistrates for their time.

3.3.5 Comparisons The Panel was not able to obtain information about the professional development allowance for

reserve magistrates across all jurisdictions. The information available showed a diversity of

approaches. Two examples included: paying for both the cost of attendance at a professional

development session and the reserve magistrates’ time; and reserve magistrates attending in their

own time. The difference in size of this cohort and their associated roles between jurisdictions

makes it difficult to draw direct comparisons with Victoria.

3.3.6 Cost implications CSV advised the Panel there were 28 reserve magistrates5 appointed to the Magistrates’ Court in

2020‐21 (now 31 as at August 2021). During this period, these reserve magistrates each worked an

average of 71 days. The cost of this recommendation would be equivalent to the professional

development cost of eight full‐time magistrates. The Panel understand that the current funding for

the professional development allowance is sufficient to cover the payment of these new allowances,

and that additional appropriation from the budget would not be required.

3.4 Judges’ prior service as a judicial registrar contribute to long service leave

entitlement eligibility

3.4.1 Recommendation 4 That when a judicial registrar is appointed as a judge, their prior service as a judicial registrar be

recognised for long service leave purposes.

4 Magistrates’ Court of Victoria as of August 2021. Accessed from https://www.mcv.vic.gov.au/judicial‐officers 5 Information provided by CSV (June 2021)


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3.4.2 Proposal put to the Panel The Supreme Court and County Court proposed that the recognition of prior service for the purposes

of long service leave for judges include recognition of service as a judicial registrar.

3.4.3 Proposed change to current entitlement This will correct an inconsistency between entitlement certificates. The time as a judicial registrar is

recognised for long service leave calculations if an individual is appointed as an associate judge or

magistrate, but not if they are appointed directly to the position of a judge.

Entitlement certificate 2 of 2014 recognises prior service of a judge in another judicial office (as a

judge, associate judge, master, magistrate or equivalent office held in Victoria, another State or

Territory of Australia or the Commonwealth). Although legislation has extended this recognition of

prior service to a limited number of public offices, this does not currently include judicial registrars.

3.4.4 Options and Evidence The Supreme Court and County Court submitted that to date two judicial registrars6 (one from each

court) have been appointed as judges of the County Court, demonstrating how the judicial registrar

position has on occasion become a pathway to judicial office.

The Panel notes the Supreme Court’s submission that prior service as a judicial registrar should be

recognised for the following reasons:

• The current arrangements are anomalous – a judicial registrar appointed as a magistrate or

associate judge has their prior service recognised, but this is not the case if they are

appointed as a judge.

• To support longevity and judicial wellbeing – as judicial registrars are often appointed at a

younger age and earlier stage of their legal careers, longer breaks are important to

maintain enthusiasm and engagement to operate at a high level.

Additionally, the portability of long service leave entitlements is standard practice across and

between public service departments and state and federal public sectors.

This recommendation would result in the time spent as a judicial registrar being recognised when

appointed as a judge, irrespective of the court where this service was undertaken or to which the

appointment relates.

3.4.5 Comparisons The recognition of prior service of a judicial registrar for a judge’s long service leave entitlement will

ensure a consistent approach is taken across the Victorian courts and judicial roles. The Panel was

not able to obtain information about this proposal for each interstate jurisdiction. Where

information was available, the difference in size of this cohort and evolving roles of judicial registrars

(or their equivalent) between jurisdictions makes it difficult to draw direct comparisons with

Victoria.

3.4.6 Cost implications It is difficult to cost this recommendation because it will vary depending on the number of judicial

registrars who are then appointed to the role of judge, with the period of accrual varying for each

judicial registrar. However, the Panel anticipates that the cost of implementing this recommendation

will be minimal. Evidence provided to the Panel shows that for the period 1 July 2016 to 30 June

6 The Supreme Court made a submission to the Panel in May 2021. Since the submission a third judicial registrar has been appointed as a judicial officer.


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2021, there have only been three judicial registrars appointed as judges, with an average length of

service of 4 years and 3 months. The Panel understands that current funding is sufficient to cover

this recommendation, and that additional appropriation from the budget would not be required.

While it is difficult to predict the longer‐term effect of the Government’s recent increased funding

for the number of judicial registrars, any future cost increases associated with this recommendation

are likely to be gradual.


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4 Observations

4.1 Entitlements for judicial registrars

4.1.1 Observation 1 That there be a review of the terms and conditions of judicial registrars in all courts.

4.1.2 Proposal put to the Panel Concerns over the entitlements of judicial registrars were raised by the Supreme, County and

Magistrates’ Courts.

The Supreme Court and County Court proposed there be an expansion of judicial registrars’ terms

and conditions of appointment to include:

a professional development allowance on the same basis provided to other judicial officers

capped at $6,550 per annum (with annual CPI adjustments),

a vehicle allowance equivalent to that provided for magistrates and access to the executive car

scheme,

access to public transport at no personal cost, and

access to the judicial health check scheme on the same basis as other judicial officers.

The Supreme Court submitted that this issue be considered by the Panel on an in‐principle basis, and

that consideration of ‘economic factors’ (as specified by the Act) be directed to issues of timing.

The Magistrates’ Court proposed that the Attorney‐General seek an Advisory Opinion in respect of

judicial registrar entitlements. This Court proposes that judicial registrars should have the same

entitlements as magistrates, save for their fixed term appointments and salary.

4.1.3 Background Submissions have shown that judicial registrars are an established part of the Victorian judiciary.

This is a growing cohort of the judiciary, evidenced by the funding for additional registrars as part of

the funding increase announced by the Victorian Government in May 2021. Their jurisdiction and

powers have increased over time, and they make an important contribution to the administration of

justice. For example, the Supreme Court submitted that initially judicial registrars were appointed to

two specialist roles in the Court of Appeal and the Costs Court. While jurisdiction was confined to

those areas, it was extensive within them. Since then, judicial registrar positions have expanded. For

example, in 2017, a judicial registrar position was created in the Criminal Division of the Court,

undertaking the majority of post committal directions hearings exercising certain powers and having

increased responsibility.

The role has also expanded over time in the County Court. Judicial registrars now have authority to

engage in procedural/transactional matters (compared to Judges who undertake both

procedural/transactional hearings and substantive/final hearings). In civil matters, judicial registrars

are involved in settlement hearings and mediations, which obviates the need for some matters to go

before the County Court. Currently, judicial registrars’ entitlements are linked to those provided

under the VPS agreement, such as work travel expenses.

Judicial registrars are not within scope of own motion recommendations in the Act. The Panel has

therefore not made a specific recommendation regarding these entitlements, however supports a

holistic review of all judicial registrars’ entitlements.


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4.2 Statutory disability scheme, superannuation, and pension entitlements for

magistrates

4.2.1 Observation 2 Noting the work undertaken by Court Services Victoria (CSV) since the Panel’s 2020 Report, that

CSV continue its advocacy for a broader review of magistrates’ superannuation and pension

entitlements with stakeholders and the Attorney‐General.

4.2.2 Proposal put to the Panel The Magistrates’ Court proposed that:

there be a statutory disability scheme for magistrates (the same scheme as superior court

judges) who are forced to retire early because of ill health or incapacity, and

it is both timely and appropriate for the Attorney‐General to seek Advisory Opinions from the

Panel in respect of superannuation and pension for magistrates.

4.2.3 Background The Magistrates’ Court has resubmitted a proposal similar to that proposed in the 2018 and 2020

Own Motion Recommendation Report, that magistrates be entitled to the same disability scheme as

superior court judges.

The disability scheme relates to pensions and superannuation of magistrates, an area that is outside

the scope of the Panel’s authority under the Act. The Panel is not able to make a recommendation,

but offers an observation. The Panel has previously made observations in relation to a disability

insurance / loss of income scheme for magistrates and commends CSV for their work towards the

consideration of establishment of a scheme.

CSV engaged the consultancy firm Mercer to advise on a scheme for magistrates who are forced to

retire early because of ill health or incapacity. Mercer provided estimated costs and analysis of a

range of alternatives. The Panel believes there is merit in this being further considered by the

Attorney‐General. The Panel further observes that this could be considered by the Attorney‐General

as part of a broader review of magistrates’ superannuation and pension entitlements. However, any

such review would require specialist knowledge including disability and insurance specialists, and

actuaries. The Panel also notes there could be inconsistencies between superannuation and pension

entitlements between the courts that would be identified by a broader review of these

arrangements.

4.3 Conditions and entitlements of VCAT members

4.3.1 Observation 3 That there be a review of terms and conditions of VCAT members.

4.3.2 Proposal put to Panel VCAT proposed that a review be conducted of the terms, conditions and entitlements of VCAT

members, especially for sessional members.

4.3.3 Background VCAT member entitlements are set out in the Governor in Council order, dated 21 October 2014.

VCAT submitted that the COVID‐19 Pandemic period highlighted the need to review and update the

terms, conditions and entitlements of its members.

The Panel notes that while the role and responsibilities of VCAT members are different from that of

other jurisdictions, there are some disparities between entitlements of members and other judicial


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officers which could be addressed. For example, VCAT member entitlements do not provide for any

training or professional development.

While the Panel is not able to make a determination on this matter given it is beyond the scope of

the Act, it makes the observation that a review is warranted, particularly given the recruitment and

retention of sessional members which is increasingly challenging for VCAT.

4.4 Conditions of employment – judicial officers’ working from home expenses

4.4.1 Observation 4 That an assessment of the working from home set up of all judicial officers be undertaken,

possibly by the Courts Council, to ensure the home set up meets appropriate WHS and cyber

safety standards.

4.4.2 Proposal put to Panel The Supreme Court and County Court proposed that the professional development allowance be

adjusted to enable the reimbursement of working from home expenses.

4.4.3 Background The Supreme Court submitted that during 2020 all members of the Court worked from home for a

period of time which presented challenges establishing appropriate home set ups. The Court

temporarily relocated some equipment offsite however, judges and associate judges frequently

supplemented this through their professional development allowance.

The Panel understands an allowance would help support judicial officers transition to a hybrid style

of work between on‐site and remote working. However, the Panel considers reasonable costs

associated with this transition and the home set up to be conditions of work, and are obligations to

be met by the employer and not an entitlement in which the uptake is at the discretion of the

employee. Conditions of work are outside the scope of the Panel’s authority under the Act.

If a court approves or indeed requires a judicial officer to work from home, it is the obligation of the

Court to adequately fund the home set up so that they meet the appropriate standards.

Furthermore, the Panel does not support a diversion of the professional development allowance

away from its intention which is to support judicial officers in ensuring they have the necessary skills

and up to date knowledge.

4.5 Conditions of employment – home privacy and security expenses

4.5.1 Observation 5 That an assessment of judicial officers’ home security measures be undertaken, possibly by the

Courts Council, to ensure the safety of the judicial officers.

4.5.2 Proposal put to Panel The Supreme Court and County Court submitted that a home and privacy security allowance be

created to allow for reimbursement of home security and privacy expenses. This includes required

improvements to both physical security and online security.

4.5.3 Background The Panel previously considered a similar proposal from the Magistrates’ Court of Victoria in its 2020

Own Motion Recommendation Report. The Panel did not support the proposal at that time;

however, it accepts that there have been significant changes in the working arrangements for

judicial officers arising from the COVID‐19 Pandemic, and the changing nature of security risks. This


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includes greater recognition of privacy risks with the internet, communications technology and social

media. This may present physical security concerns by potentially putting at risk judicial officers’

personal safety, and that of their family members. Judicial officers may incur costs associated with

physical home security and online security including protecting their personal information. The Panel

considers that reasonable costs related to addressing online and physical security concerns are

conditions of work and therefore are obligations that should be met by the employer. Conditions of

work are outside the scope of the Panel’s authority under the Act.

4.6 Motor vehicle allowance for associate judges of the Supreme Court

4.6.1 Observation 6 The Panel encourages the Courts Council to consider undertaking an examination of judicial

entitlements relating to motor vehicle allowances and to determine how to modify judicial salary

arrangements to enable salary packaging for cars. This approach provides the judiciary with

greater flexibility, and is also widely used across private sector. This would result in a more

contemporary and less administratively burdensome scheme.

4.6.2 Proposal put to Panel The Supreme Court resubmitted that associate judges of the Supreme Court receive the same motor

vehicle allowance as a judge of the County Court.

4.6.3 Background The Panel recommended this proposal in the 2020 Own Motion Recommendation Report. This Panel

notes that the proposed approach does not align with contemporary executive contracts that

incorporate a motor vehicle allowance as part of a salary package.

However, the Panel does not have authority under the Act to make recommendations regarding

salary. The Panel supports a broad overview of the judiciary’s motor vehicle entitlements and if

appropriate, a strategy to transition to a modern approach that reflects contemporary practice. The

Panel recognises that this would likely require legislative change.


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5 Rejected proposal

5.1 Increase magistrates’ long service leave

5.1.1 Proposal put to the Panel That magistrates’ long service leave be increased from three months to six months, accrued every 10

years of service.

5.1.2 Rationale The Magistrates’ Court resubmitted its proposal from the 2018 and 2020 Own Motion

Recommendation Reports, to increase magistrates long service leave to six months (for each 10

years of service).

The Panel previously rejected this proposal and it has not changed its view. Three months long

service leave after 10 years of service is also consistent with the Federal Circuit Court.

The Panel has recommended an increase in magistrates’ annual leave, which it believes would assist

in addressing the wellbeing risks raised by this proposal.


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Appendix 1 – Submission from Department of Treasury and Finance


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Documents

Own Motion Recommendations to the Attorney‐General