Opinion Number. 1343


deductions from salary of judge of northern territory for superannuation contributions: application of principle that salary of judge cannot be reduced during tenure

The Secretary, Home and Territories Department

In connection with Opinion No. 15 of 1923,(1) dated the 18th January, 1923, the Secretary, Home and Territories Department, has forwarded for consideration a copy of a communication from the Judge of the Northern Territory, which reads as follows:

While I was away from Darwin on recreation leave, between December 6, 1922, and March 14, 1923, certain deductions from my salary were made.

As my salary was being paid into the Darwin Branch of the English Scottish and Australian Bank Limited, I did not learn about the deduction until after my return to Darwin in March, when I had my pass book made up.

I then spoke to you and orally requested an explanation of the deductions. You were subsequently good enough to show me an opinion which had been obtained from someone in the office of the Commonwealth Solicitor-General. This opinion was to the effect that the Judge of the Supreme Court of the Northern Territory was an employee within the meaning of the Superannuation Act 1922 (Commonwealth). This was why the deductions had been made.

That opinion seemed to be based upon the definition in the Act and not to have been arrived at after a review of the constitutional validity of the Statute in question.

As I told you in March last, I object to the deduction from my salary of any sum.

I make this objection whether the deduction is claimed to have been made under powers conferred by the Superannuation Act 1922, or otherwise.

It is a well known and incontrovertible principle of the Constitution of England that even a sovereign Parliament would not dream of reducing the salary of a Judge while his commission is in force. It is essential that there should be this safeguard of the independence of the judiciary against improper coercion.

I need not go into the basic reasons for that principle in this letter.

The Constitution of South Australia is based upon the constitutional law of England. South Australian Supreme Court Judges have received an increase in salary but never has their salary been reduced during the currency of any judge’s commission.

Although the Supreme Court Ordinance 1911–1922 (Northern Territory) is indicated as the statutory authority for my appointment, I am still exercising all the functions and powers of a Judge of the Supreme Court of South Australia. Indeed I have to take the responsibility of doing alone here the judicial acts done in South Australia by the Full Court of the State Supreme Court. Under the Observance of Law Ordinance 1921 (Northern Territory), I sit in the Criminal Jurisdiction of the Supreme Court in trials, upon all charges or indictments except those for murder, without a jury.

The Supreme Court Act 1878 (South Australia) still applies here subject to the Supreme Court Ordinance of the Northern Territory and the South Australian Act is practically the same as the English Supreme Court of Judicature Act 1873. The English Act and the South Australian Act constitute Courts having all the Jurisdiction of the High Court of Chancery, the Court of Queen’s Bench, the Court of Common Pleas, the Court of Exchequer, the High Court of Admiralty, the Court of Probate, the Court of Divorce and Matrimonial Causes, and the Bankruptcy Court. All the Courts mentioned were united and constituted together in England in 1873, in South Australia in 1878, and I carry on here to-day under the South Australian Act. I thus have all the powers and responsibility of a Justice of the High Court of Judicature in England.

Reading the South Australian Acts relating to the constitutional position of the Judges, together with the Supreme Court Ordinance 1911–1922 so far as they can be construed together, or so far as they are incorporated, I consider that the Commonwealth Superannuation Act 1922 is unconstitutional.

I do not say that its general scope and operation are unconstitutional, but in so far as it attempts to reduce the salary of the Judge of the Northern Territory it is unconstitutional and invalid.

I therefore claim payment of my salary in full in terms of my commission and my appointment which was made on November 10th, 1921.

I do not think any useful purpose would be served by going into cases and giving quotations from judgments upon this subject in this letter to you.

I do not wish to appear obstructive, and so I have obtained, and I now enclose herewith, a certified copy of a certificate of my birth. This was asked for in your letter to me of 18th July last, which I have not answered because I had to obtain the Certificate from Adelaide.

It must be distinctly understood that I do not acquiesce in any deduction from the salary to which I claim to be entitled.

The applies to deductions already made and to any deductions you may have intended making in the future.

I should be glad to have the certificate returned to me after it has been noted.

Apparently Judge Roberts does not question the interpretation placed by this Department on the Superannuation Act 1922, but contends that, insofar as that Act ‘attempts to reduce his salary’ it is unconstitutional and invalid.

I can find no authority for the proposition that there is included in the South Australian Constitution the principle that a Judge’s salary cannot be reduced while his commission remains in force. Moreover, Judge Roberts appears to have overlooked the significance of the fact that, although in many respects his powers and functions are similar to those of a Judge of the Supreme Court of South Australia, in regard to appointment, tenure and salary, he is upon an entirely different footing, these matters being governed in his case by the Supreme Court Ordinance of the Northern Territory.

Section 122 of the Constitution provides (inter alia) that the Commonwealth Parliament may make laws for the government of any territory surrendered by any State to and accepted by the Commonwealth, and, in my opinion, legislation passed by the Commonwealth Parliament in pursuance of this section is valid unless it conflicts with some Imperial law applicable to the Territory. I am of opinion that Judge Roberts has not shown any such conflict and the validity of the Superannuation Act 1922 cannot be successfully challenged on the grounds set forth in his letter.

[Vol. 20, p. 389]

(1) Opinion No. 1300.