SARC criticises a constitutional amendment

The Victorian Parliament’s Scrutiny of Acts and Regulations Committee (whom I advise, but whose views aren’t mine and vice versa) has this to say about a current bill to amend the Victorian Constitution (and some other legislation) in relation to pensions of various judges and other constitutional officers:

The Committee considers that para. (a)(ii) of the definition of partner in clauses 3 and 9 may be incompatible with Charter s. 8(3).

Those are bold words for a bipartisan committee and only the second time such a finding has been made since the Charer commenced. Unlike the first time, there’s no apparent excuse for this discrimination.

Last time, the offending bill facilitated superannuation splitting the case of relationship breakdown, but only for opposite-sex de factos, not same-sex de factos. The Minister responded to SARC’s report by explaining that a less discriminatory rule would, alas, breach discriminatory Commonwealth legislation that governed whether or not super schemes were eligible for tax exemptions. (For what it’s worth, I don’t think that counts as an excuse under Charter s. 7(2), which only permits limits based on laws that are ‘based on human dignity, equality and freedom’, which the Commonwealth law patently wasn’t. Rather, I think that this sort of external problem is the right occasion to use an override declaration. Alas, the government thinks that overrides are only for emergencies, though why Charter s. 7(2) wouldn’t cover those isn’t clear to me.)

Anyway, there’s no Commonwealth law forcing the Victorian government’s hand this time. This bill is actually about making the pension scheme for judges and others less discriminatory, by extending the generous pension for ‘spouses’ to ‘domestic partners’. It’s clear that this removes an existing discriminatory and very Charter-unfriendly provision from the Constitution. But, alas, there is a separate provision for judges and others who are already ‘entitled’ to benefits, a category that at least includes retired judges, though SARC was unsure about who else it might include. Weirdly, this transititional provision doesn’t preserve the status quo (which carries its own rights problems) but instead changes it by introducing pensions for opposite-sex de factos, but not same-sex ones. That’s an improvement, of course, but a very discriminatory one. It’s hard to think of any possible explanation for it. Certainly, the government didn’t provide one. (The EM just comments that the same provision was used when the Parliamentary super scheme was made non-discriminatory in 2001; but that’s a bad comparison, because the Parliamentary scheme applied to opposite-sex de factos before 2001, whereas the judge’s pension has never applied to anyone except married partners.)

SARC was also worried that another change – extending the circumstances when partners lose their generous pension to include when they acquire a ‘domestic partner’ – is incompatible with the independence of the courts (as well as discriminatory.)

One mystery is why the judges themselves – who were surely consulted about all of this – didn’t raise these objections.

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