Supreme Court Act 1887

Supreme Court Act 1887

[The long title Amended by 26 Geo. V No. 16, s. 7 ][The long title Amended by No. 30 of 1958, s. 5 ]An Act to amend the Supreme Court Act 1831 , and to make provision for the appointment of additional judges of the Supreme Court

[Preamble Repealed by 26 Geo. V No. 16, s. 7 ]

Be it enacted by His Excellency the Governor of Tasmania, by and with the advice and consent of the Legislative Council and House of Assembly, in Parliament assembled, as follows:

1.   Interpretation

[Section 1 Amended by 26 Geo. V No. 16, s. 7 ][Section 1 Amended by No. 68 of 1994, s. 3 and Sched. 1 ][Section 1 Substituted by No. 91 of 1999, s. 75, Applied:15 Dec 1999] In this Act, unless the contrary intention appears –

accumulation scheme means the Tasmanian Accumulation Scheme established under the Public Sector Superannuation Reform Act 1999 ;

barrister means a barrister within the meaning of the Legal Profession Act 1993 ;

[Section 1 Amended by No. 103 of 2000, Sched. 1, Applied:13 Dec 2000]

[Section 1 Amended by No. 103 of 2000, Sched. 1, Applied:13 Dec 2000] complying superannuation scheme means a complying superannuation fund as provided by the law of the Commonwealth;

RBF Board means the Retirement Benefits Fund Board continued in existence under section 7 of the Retirement Benefits Act 1993 ;

[Section 1 Amended by No. 65 of 2005, Sched. 1, Applied:15 Dec 2005] RSA means a Retirement Savings Account within the meaning of the Retirement Savings Accounts Act 1997 of the Commonwealth;

Secretary means the Secretary of the Department;

[Section 1 Amended by No. 45 of 2003, Sched. 1, Applied:01 Jan 2004] spouse includes the person with whom a person is, or was at the time of his or her death, in a significant relationship, within the meaning of the Relationships Act 2003 ;

transfer day means the day specified in a notice under section 7(5) of the Public Sector Superannuation Reform Act 1999 .

2.   Additional puisne judges

[Section 2 Amended by 26 Geo. V No. 16, s. 7 ][Section 2 Amended by No. 18 of 1951, s. 2 ][Section 2 Amended by No. 30 of 1958, s. 2 ][Section 2 Substituted by No. 88 of 1975, s. 2 ][Section 2 Amended by No. 37 of 1984, s. 4 ]In addition to the Chief Justice and the puisne judge of the Supreme Court required to be appointed under the Charter of Justice, the Governor may appoint barristers of the Court, duly qualified in that behalf, to be additional puisne judges of the Supreme Court, so long as at any one time there are not more than 5 such additional puisne judges.

2A.    State Service Act 2000 not to apply

[Section 2A Inserted by No. 29 of 1984, s. 3 and Sched. 1 ][Section 2A Renumbered by No. 46 of 1991, s. 5 and Sched. 3 ][Section 2A Amended by No. 86 of 2000, Sched. 1, Applied:01 May 2001] The State Service Act 2000 does not apply to the appointment of judges of the Supreme Court.

3.   Acting judges

[Section 3 Amended by 26 Geo. V No. 16, s. 7 ][Section 3 Repealed by No. 19 of 1951, s. 10 ][Section 3 Inserted by No. 88 of 1975, s. 2 ]

(1)  [Section 3 Subsection (1) amended by No. 29 of 1998, s. 4, Applied:26 Jun 1998] Where the Governor is of opinion that a situation of a temporary nature has arisen, or is likely to arise, in which it is necessary or desirable, in the public interest, that the powers of this section should be exercised, he may appoint a qualified person as an acting judge of the Court to act as puisne judge thereof until the happening of such event, or for such period, as the Governor may specify in his instrument of appointment.

(1A)  [Section 3 Subsection (1A) inserted by No. 29 of 1998, s. 4, Applied:26 Jun 1998] In subsection (1) ,

qualified person means a person who –

(a) is eligible for the office of judge of the Supreme Court; or

(ab) [Section 3 Subsection (1A) amended by No. 43 of 2006, s. 58, Applied:18 Dec 2006] has been a judge of the Supreme Court; or

(b) is or has been a judge of the Federal Court of Australia; or

(c) is or has been a judge of the Supreme Court of another State or a Territory.

(2)  Subject to this section, an acting judge holding office under this section has the same powers and jurisdiction as a puisne judge of the Supreme Court, and while he so holds office shall be deemed to be a puisne judge of the Court.

(3)  An acting judge is entitled to be paid out of the Consolidated Revenue (which, to the necessary extent, is appropriated accordingly) a salary at the same rate as that payable to a puisne judge.

(4)  [Section 3 Subsection (4) substituted by No. 19 of 1995, s. 12 ]The Judges' Contributory Pensions Act 1968 does not apply to a person by reason of that person holding office as an acting judge and service as an acting judge is not taken to be service as a judge for the purposes of that Act.

(5)  Section 5 does not apply to the appointment of an acting judge, and section 6A does not apply to the office of acting judge.

4.   Qualification for appointment

(1)  [Section 4 Subsection (1) amended by 26 Geo. V No. 16, s. 7 ][Section 4 Subsection (1) amended by No. 68 of 1994, s. 3 and Sched. 1 ]The office of any judge of the Supreme Court may be held by a barrister of the said Court who is of the age of 35 years and upwards, and of not less than 10 years' standing at the Bar of the said Court: and, notwithstanding anything to the contrary contained in the Charter of Justice or in any former Act, no barristers in England or Ireland shall be eligible for the office of judge of the said Court who is not of the age of 35 years and upwards, and of 10 years' standing at the Bar in England or Ireland: Provided that, where any person duly admitted under the Legal Profession Act 1993 , to act in the said Court as a barrister, attorney, solicitor, and proctor has been or shall be struck off the Roll of the said Court for the purpose of being called to the English Bar, and shall be duly admitted a barrister-at-law in England, and shall thereafter be duly admitted to act in the said Court as a barrister, attorney, solicitor, and proctor, or as a barrister only, the period during which such person shall have been enrolled prior to the date of his being struck off the Roll and also the period during which he shall have been absent from Tasmania for the purpose of being called to the English Bar shall be included in computing for the purposes of this section his length of standing at the Bar of the said Court.

(2)  [Section 4 Subsection (2) added by 26 Geo. V No. 16, s. 7 ]In addition to barristers heretofore eligible therefor, barristers of the Supreme Court of any State of the Commonwealth or New Zealand of the age of 35 years or upwards, and of not less than 10 years' standing at the Bar of any such Court, or 10 years' standing in the aggregate at the Bar of any such Court, and of the Supreme Court of Tasmania, shall be eligible for the office of any judge of the Supreme Court of this State.

5.   Mode of appointment

[Section 5 Amended by 26 Geo. V No. 16, s. 7 ]After the commencement of this Act the nomination and appointment of the judges of the Supreme Court by virtue of any power in that behalf enabling shall be by the Governor by letters patent under the Public Seal of the State.

6.   Powers and privileges

[Section 6 Amended by 26 Geo. V No. 16, s. 7 ]

(1)  Each of the puisne judges of the said Court shall have, hold, exercise, and enjoy all the powers, privileges, and immunities which, by the Charter of Justice and any law, statute, or usage, are conferred upon or made exercisable by the puisne judge of the Supreme Court of Tasmania or any judge of the said Court to and for all intents and purposes whatsoever as fully and effectually as if each of the said puisne judges had been respectively mentioned or referred to in the said Charter and every law or statute relating to the said Court or the practice or procedure thereof in any jurisdiction whatsoever.

(2)  Where in the said Charter or any former Act reference is made to two judges of the said Court, the same shall, after the appointment of an additional puisne judge under this Act, be deemed to refer to the said Chief Justice and the puisne judges hereinbefore mentioned.

6A.   Retirement of judges

[Section 6A Inserted by No. 18 of 1951, s. 3 ]

(1)  [Section 6A Subsection (1) amended by No. 17 of 2005, Sched. 1, Applied:10 Jun 2005] Each of the judges of the said Court shall retire from office on attaining the age of 72 years.

(2)  This section does not apply to or in respect of any person holding office as a judge of the said Court at the commencement of this section.

7.   Remuneration of judges

[Section 7 Repealed by No. 41 of 1959, s. 2 and Sched. ][Section 7 Inserted by No. 45 of 1996, s. 8 ]

(1)  [Section 7 Subsection (1) amended by No. 91 of 1999, s. 76, Applied:15 Dec 1999] The Chief Justice is to be paid a salary in respect of a financial year at the rate determined by the Auditor-General under subsection (3) or (3A) .

(2)  A puisne judge is to be paid a salary at the rate of 90% of that of the Chief Justice.

(3)  [Section 7 Subsection (3) amended by No. 91 of 1999, s. 76, Applied:15 Dec 1999] [Section 7 Subsection (3) substituted by No. 103 of 2000, Sched. 1, Applied:13 Dec 2000] The Auditor-General, as soon as practicable after 31 May in each year and in accordance with this section, must determine the rate that is the average of the rates of salary payable to the Chief Justices in South Australia and Western Australia at the time of the determination, and that rate of salary is to have effect in respect of the financial year commencing on the following 1 July.

(3A)  [Section 7 Subsection (3A) inserted by No. 91 of 1999, s. 76, Applied:15 Dec 1999] If the salary of the Chief Justice of South Australia or of the Chief Justice of Western Australia is varied as a consequence of a change in any applicable law relating to the superannuation entitlements of either Chief Justice, the Auditor-General must disregard the amount of that variation that in his or her opinion is attributable to that change in the law.

(3B)  [Section 7 Subsection (3B) inserted by No. 91 of 1999, s. 76, Applied:15 Dec 1999] For the purposes of subsection (3A) , the Auditor-General may seek advice from –

(a) the Secretary of the responsible Department in relation to the Judges' Contributory Pensions Act 1968 ; and

(b) a person or organisation appointed as Actuary for the purposes of the Retirement Benefits Act 1993 ; and

(c) any other person or organisation that the Auditor-General considers appropriate.

(3C)  [Section 7 Subsection (3C) inserted by No. 91 of 1999, s. 76, Applied:15 Dec 1999] [Section 7 Subsection (3C) substituted by No. 52 of 2002, s. 24, Applied:27 Nov 2002] Notwithstanding subsections (1) and (2) , a judge may elect, in writing to the Secretary, at any time but not more than once in a period of one year, that the salary determined in accordance with this section may be provided –

(a) in part by the payment of salary to the judge; and

(b) [Section 7 Subsection (3C) amended by No. 65 of 2005, Sched. 1, Applied:15 Dec 2005] in part by the payment of employer superannuation contributions to an RSA or a complying superannuation scheme, which may include the accumulation scheme.

(3D)  [Section 7 Subsection (3D) inserted by No. 91 of 1999, s. 76, Applied:15 Dec 1999] If a judge elects to sacrifice some or all of his or her salary under subsection (3C)  –

(a) the election has effect from the date of the election or from a later date specified in the election for that purpose; and

(b) he or she is taken, for any purpose related to superannuation, to have received the salary determined in accordance with this section, notwithstanding the salary sacrifice.

(4)  The Chief Justice and puisne judges are entitled to be paid out of the Consolidated Fund.

(5)  [Section 7 Subsection (5) omitted by No. 91 of 1999, s. 76, Applied:15 Dec 1999] .  .  .  .  .  .  .  .  

8.   Superannuation entitlements of judge appointed after 1 July 1999

[Section 8 Amended by 26 Geo. V No. 16, s. 7 ][Section 8 Repealed by No. 41 of 1959, s. 2 and Sched. ][Section 8 Inserted by No. 91 of 1999, s. 77, Applied:15 Dec 1999]

(1)  This section applies only in respect of a person appointed as a judge after 1 July 1999.

(2)  Where a person is appointed as a judge after 1 July 1999 and before the transfer day –

(a) he or she is not eligible to become a member of the contributory scheme provided by the regulations under the Retirement Benefits Act 1993 ; and

(b) [Section 8 Subsection (2) amended by No. 65 of 2005, Sched. 1, Applied:15 Dec 2005] references to an employee in the Public Sector Superannuation Reform Act 1999 are to be read as including references to a judge; and

(c) [Section 8 Subsection (2) amended by No. 65 of 2005, Sched. 1, Applied:15 Dec 2005] .  .  .  .  .  .  .  .  

(d) the rate of contributions to be made in respect of the judge is 9% of the salary determined in accordance with section 7 ; and

(e) [Section 8 Subsection (2) amended by No. 65 of 2005, Sched. 1, Applied:15 Dec 2005] all such contributions are to be paid into an RSA or a complying superannuation scheme nominated by the judge in accordance with subsection (4) or, if no such nomination is made, into the accumulation scheme.

(3)  Where a person is appointed as a judge on or after the transfer day –

(a) he or she is not eligible to become a member of the contributory scheme provided by the regulations under the Retirement Benefits Act 1993 ; and

(b) subject to subsection (4) , he or she is to be a member of the accumulation scheme; and

(c) references to an employee in the Public Sector Superannuation Reform Act 1999 are to be read as including references to a judge; and

(d) the rate of contributions to be made in respect of the judge is 9% of the salary determined in accordance with section 7 of this Act.

(4)  [Section 8 Subsection (4) amended by No. 65 of 2005, Sched. 1, Applied:15 Dec 2005] A judge may elect, either before or after commencing the duties of that office, to become a member of an RSA or a complying superannuation scheme that is not the accumulation scheme.

(5)  [Section 8 Subsection (5) substituted by No. 65 of 2005, Sched. 1, Applied:15 Dec 2005] If a judge has become a member of an RSA or a complying superannuation scheme that is not the accumulation scheme, he or she may elect at any time while holding office as such to become a member of the accumulation scheme.

(6)  [Section 8 Subsection (6) amended by No. 65 of 2005, Sched. 1, Applied:15 Dec 2005] Where a judge elects to become a member of a complying superannuation scheme that is not the accumulation scheme, the Secretary must, on being satisfied after making reasonable inquiries that the nominated scheme is a complying superannuation scheme, make contributions –

(a) at the rate of 9% of the salary determined in accordance with section 7 ; and

(b) in the manner required by the rules of that scheme and the requirements of the law of the Commonwealth.

(6A)  [Section 8 Subsection (6A) inserted by No. 65 of 2005, Sched. 1, Applied:15 Dec 2005] Where a judge elects to become a member of an RSA, the Secretary must make contributions at the rate of 9% of the salary determined in accordance with section 7 .

(7)  [Section 8 Subsection (7) omitted by No. 65 of 2005, Sched. 1, Applied:15 Dec 2005] .  .  .  .  .  .  .  .  

(8)  [Section 8 Subsection (8) inserted by No. 103 of 2000, Sched. 1, Applied:13 Dec 2000] The Secretary is not required to pay superannuation contributions into a complying superannuation scheme if that scheme does not accept payment by electronic funds transfer.

8A.   Voluntary contributions and spouse contributions

[Section 8A Inserted by No. 91 of 1999, s. 77, Applied:15 Dec 1999] A judge may elect, in writing to the RBF Board, to make voluntary contributions or spouse contributions to the accumulation scheme or an investment account established by the regulations under the Retirement Benefits Act 1993 .

8B.   Lump sum benefit may be taken as allocated pension

[Section 8B Amended by No. 45 of 2003, Sched. 1, Applied:01 Jan 2004] [Section 8B Inserted by No. 91 of 1999, s. 77, Applied:15 Dec 1999] Where a judge or his or her spouse is in receipt of a lump sum benefit, he or she may elect to transfer all or part of that benefit to the accumulation scheme or an allocated pension account established by the regulations under the Retirement Benefits Act 1993 .

8C.   Appropriation

[Section 8C Inserted by No. 91 of 1999, s. 77, Applied:15 Dec 1999] An amount payable under section 7 or 8 is payable out of the Consolidated Fund which, to the necessary extent, is appropriated accordingly.

9.   Rules of Court

[Section 9 Repealed by 26 Geo. V No. 16, s. 7 ][Section 9 Inserted by No. 30 of 1958, s. 4 ][Section 9 Amended by No. 37 of 1984, s. 5 ]The power to make rules and orders under section 16 of the Australian Courts Act, 1828 may so far as it still exists be exercised by a majority of the judges.

10.   

11.   Sittings of the Court

[Section 11 Amended by 26 Geo. V No. 16, s. 7 ]

(1)  [Section 11 Subsection (1) amended by No. 50 of 1977, s. 11 ]Sittings of the Court for the trial of civil or criminal issues and assessment of damages and for the exercise of any other jurisdiction conferred upon the Court by law shall be held at such times and at such places as may lawfully be appointed.

(2)  It shall be incumbent upon a judge to attend and preside over such sittings, and to attend to the due despatch of business in Chambers in Launceston as circumstances may from time to time require.

(3)  One of the judges shall attend in Chambers at Launceston at least one day in each week unless previously notified by the Deputy-Sheriff that his attendance is not required; but a judge shall not be obliged to attend at Launceston when his services are necessary in Hobart during term time or for the sittings of the Supreme Court.

12.   Short title

[Section 12 Substituted by 26 Geo. V No. 16, s. 7 ]This Act may be cited as the Supreme Court Act 1887 .