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Courts Administration Legislation Amendment Bill 2015



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ISSN 1328-8091

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BILLS DIGEST NO. 76, 2015-16 3 FEBRUARY 2016

Courts Administration Legislation Amendment Bill 2015 Moira Coombs Law and Bills Digest Section

Contents

Purpose of the Bill ............................................................... 3

Structure of the Bill ............................................................. 3

Background ......................................................................... 3

Reports to Government ........................................................... 4

Skehill Review ........................................................................ 4

Independent Reviews of the Federal Court, Family Court and the Federal Circuit Court of Australia ................... 5

National Commission of Audit ............................................ 5

Independent Reviews .......................................................... 6

Committee consideration .................................................... 6

Senate Selection of Bills Committee........................................ 6

Senate Standing Committee for the Scrutiny of Bills .............. 6

Position of major interest groups ......................................... 6

Family Court of Australia ......................................................... 6

Law Council of Australia .......................................................... 7

Financial implications .......................................................... 7

Key issues and provisions..................................................... 8

Schedule 1—Federal Court of Australia ................................ 8

Arrangements with other courts ............................................. 8

Merged Corporate Services Function ...................................... 9

Division 1—Corporate services ............................................. 9

Application of the PGPA Act .................................................. 10

Delegation of powers under the PGPA Act ......................... 10

Management of Appropriations for the merged entity ...... 11

Application of the Public Service Act ................................... 11

Delegation of powers or functions under the Public Service Act ........................................................................... 11

Date introduced: 2 December 2015

House: Senate

Portfolio: Attorney-General

Commencement: Sections 1 to 3 and Schedule 6 commence on Royal Assent. Schedule 1, Part 1, Schedule 2, Part 1, Schedules 3 and 4 and Schedule 5, Parts 1 and 2 commence on 1 July 2016. Schedule 1, Part 2, Schedule 2, Part 2 and Schedule 5, Part 3 commence on 1 January 2018.

Links: The links to the Bill, its Explanatory Memorandum and second reading speech can be found on the Bill’s home page, or through the Australian Parliament website.

When Bills have been passed and have received Royal Assent, they become Acts, which can be found at the ComLaw website.

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Chief Executive Officer of the Federal Court—other powers ................................................................................... 12

Part 2—amendments commencing 1 January 2018 ........... 12

Schedule 2—Family Court of Australia .................................. 12

Part 2—amendments commencing 1 January 2018 ........... 13

Schedule 3—Federal Circuit Court of Australia ..................... 13

Chief Executive Officer ........................................................ 13

Remuneration ...................................................................... 13

Term of appointment .......................................................... 13

Disclosure of interests ......................................................... 14

Schedule 4—National Native Title Tribunal .......................... 14

Schedule 5—Consequential Amendments ............................ 14

Part 1—Family Court Justice, Deputy Chief Justice and Judge Administrators........................................................... 14

Part 2—Chief Executive Officers—amendments commencing 1 July 2016 ..................................................... 14

Part 3—Chief Executive Officers—amendments commencing 1 January 2018 ............................................... 15

Schedule 6—Application and transitional provisions ............ 15

Part 1—Definitions .............................................................. 15

Part 2—Names of offices, appointments ............................ 15

Part 3—Matters relating to the PGPA Act ........................... 15

Part 4—Matters relating to APS employment .................... 16

Concluding comments ........................................................... 16

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Purpose of the Bill The purpose of the Courts Administration Legislation Amendment Bill 2015 (the Bill) is to achieve greater efficiencies in the corporate management of the Federal Court of Australia (Federal Court),1 the Family Court of Australia (Family Court) and the Federal Circuit Court of Australia (Federal Circuit Court) (collectively referred to hereinafter as ‘the Courts’).

To achieve this, the Bill will designate the Courts a single administrative entity under the Public Governance, Performance and Accountability Act 2013 (the PGPA Act), and as a single statutory agency under the Public Service Act 1999. The Bill will also place responsibility for the corporate management of the three Courts with the Chief Executive Officer (CEO) of the Federal Court.

It is proposed that the financial savings achieved as a result of these changes will be reinvested in the Courts. The Bill implements a budget decision announced by the Government as part of the 2015-16 Budget.2

Structure of the Bill The Bill consists of six Schedules:

• Schedule 1—amends the Federal Court of Australia Act 1976 (Federal Court Act)3 to establish the framework for a merged administrative entity, with the Federal Court as the listed entity in the PGPA Act, and the Federal Court CEO the accountable authority and head of the new statutory agency.

• Schedule 2—amends the Family Law Act 19754 to make the Court’s CEO independent and amend provisions to make them consistent with those of the other courts. Currently the administrative and corporate services of the Family Court and the Federal Circuit Court have been jointly administered. The Federal Court CEO will be responsible for the corporate services of the Family Court.5

• Schedule 3—amends the Federal Circuit Court of Australia Act 1999 (Federal Circuit Court Act)6 to establish an independent CEO for this Court and make the necessary changes to provisions to make then consistent with those of the other two Courts. The Federal Court CEO will be responsible for the corporate services of the Federal Circuit Court.

• Schedule 4—amends the Native Title Act 19937 relating to the National Native Title Tribunal to make provisions consistent as part of the merged entity.

• Schedule 5— makes consequential amendments.

• Schedule 6—sets out application and transitional provisions.

Background As part of the 2015-16 Budget, the Government announced the merging of the corporate services functions of the Federal Court, the Family Court and the Federal Circuit Court:

The Government will provide funding of $22.5 million over four years to streamline and improve the sustainability of the Family Court, Federal Circuit Court of Australia and the Federal Court of Australia (the Courts). In addition, the Courts will enhance their sustainability through greater efficiencies, including merging their corporate functions from 1 July 2016.

The Government will also provide $30.0 million to the Department of Finance for refurbishment of Court buildings. Refurbishments will include improvements to holding cells consistent with the recommendations of the Royal Commission into Aboriginal Deaths in Custody, and improvements to the safety of child dispute conference areas.

1. Including the National Native Title Tribunal. See further below. 2. N Scullion, ‘Second reading speech: Courts Administration Legislation Amendment Bill 2015’, Senate, Debates, 2 December 2015, p. 9661, accessed 29 January 2016. 3. Federal Court of Australia Act 1976, accessed 14 December 2015. 4. Family Law Act 1975, accessed 14 December 2015. 5. Currently the Family Court and the Federal Circuit Court share a CEO. 6. Federal Circuit Court of Australia Act 1999, accessed 14 December 2015. 7. Native Title Act 1993, accessed 14 December 2015.

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The cost of this measure will be met through additional revenue of $87.4 million over four years from changes to the fee structures for the Courts. 8

By merging the corporate services functions of the three Courts, the Government intends to place ‘the courts on a sustainable funding footing over the longer term, leaving them far better placed to deliver services to litigants. This is because savings arising from the efficiencies will be reinvested in the courts’.9

Further the Minister noted:

Without the merger implemented by the Bill, alternative and much less palatable measures would need to be explored to allow budgets to be met. Because access to the courts is a fundamental tenet upon which our justice system is based, the Government was anxious to ensure budget rectitude did not result in frontline court services being cut.

10

Media reports suggest that the family law system is in crisis. A former Federal Circuit Court judge (Giles Coakes), is reported as having accused ‘the government of neglect for failing to appoint family law judges in a timely manner’ and that ’the delay in appointing judges had caused court lists to blow out and children had been put at risk’.11 Mr Coakes noted further:

These (cases involve) dysfunctional families and children at risk from dysfunctional parents because of drug abuse, alcohol abuse, domestic violence in all its forms and mental illness.

That represents a real danger to the children. Until a case can be heard and finalised by a judge, those risks are continuing. 12

On 29 October 2015, the Attorney-General, Senator George Brandis, announced the appointment of four judges to the Federal Circuit Court. The Attorney-General foreshadowed the appointment of two more judges to the Federal Circuit Court.13

Reports to Government Recommendations contained in a number of reports have informed the Government’s decision to merge the corporate services functions of the three Courts.

Skehill Review One of the objects of the Skehill Strategic Review of Small and Medium Agencies in the Attorney-General’s Portfolio, completed in 2012, was:

4. With regard to the federal courts and tribunals in the Attorney-General’s portfolio, the review will consider options for improving efficiency and flexibility in court and tribunal administration, including service delivery, whether the courts and tribunals are financially viable in their current form, including options for improving shared services and administration arrangements.

5. In addition to those matters set out in paragraph 4, the review should consider the potential for shared services and administration arrangements between the tribunals within the Attorney-General’s portfolio and administrative review bodies in other portfolios.

6. Paragraph 4 applies to the Federal Court of Australia, the Family Court of Australia, the Federal Magistrates Court of Australia, the Administrative Appeals Tribunal and the National Native Title Tribunal but does not apply to the High Court of Australia. 14

8. Australian Government, ‘Streamlining and improving the sustainability of courts’ in ‘Part 2: Expense measures’, Budget measures: budget paper no. 2: 2015-16, accessed 14 December 2015. 9. N Scullion, ‘Second reading speech: Courts Administration Legislation Amendment Bill 2015’, Senate, Debates, 2 December 2015, p. 9661, accessed 19 January 2016. 10. Ibid.

11. N Berkovic, ‘Family law crisis ‘put kids at risk’’, The Australian, 3 December 2015, p. 3, accessed 29 January 2016. 12. Ibid.

13. G Brandis (Attorney-General), Putting federal courts on a sustainable footing, media release, 3 December 2015, accessed 29 January 2016.

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The report of this review noted the considerable savings that have resulted from the merger in 2008 of the administration of the Family Court and the Federal Magistrates Court (now the Federal Circuit Court).15

5.33 The administrative merger produced considerable savings and, as a result, the Government reduced the total appropriation for the two Courts by some $7.8m over four years on the basis the new arrangements would generate savings to the Budget of that order. Government reinvested $1.5m over 4 years in additional Family Reports resulting in a net saving of $6.3m to the Budget over 4 years.

16

At around the same time, the Government also announced in the 2012-13 Budget, an initiative to incorporate the National Native Title Tribunal into the Federal Court and for it to operate as a distinct organisational unit of the Federal Court. The Government announced:

that it would implement the recommendations of the Strategic Review (Skehill Review) as they relate to the National Native Title Tribunal (NNTT) to strengthen and streamline the native title system. The changes involve transferring native title claims mediation functions from the National Native Title Tribunal to the Federal Court of Australia. The National Native Title Tribunal will continue to perform all of its other current functions, as a distinct organisational unit of the Federal Court of Australia.

The initiative builds on the Government’s 2009 reforms, which gave the Federal Court greater case management powers. The number of consent determinations rose from 11 in 2008-2009, the last full year before the Government’s reforms came into effect, to 24 in 2010-11.These reforms are expected to generate $19m in savings over the next four years, which will be reinvested in the Stronger Futures in the Northern Territory initiative.

17

Independent Reviews of the Federal Court, Family Court and the Federal Circuit Court of Australia The annual report of the Attorney-General’s Department for 2014-15 refers to several other reviews of the federal court system which have also informed the content of this Bill:

In December 2014, the department engaged Ernst & Young to identify savings and implementation costs of reform options for the federal courts outlined in a previous independent review by KPMG from March 2014. The Attorney-General considered the findings in developing a package of reform measures to streamline and improve the sustainability of the courts as part of the 2015-16 Federal Budget, alongside the recommendations of the Productivity Commission’s 2014 Access to Justice Arrangements report and the 2013-14 National Commission of Audit. On 23 April 2015, the department engaged Ernst & Young to look at further structural and funding issues in consultation with the federal courts.

18

National Commission of Audit In 2014, the National Commission of Audit report considered merit in having shared administrative arrangements for the courts:

It would be possible to merge the Federal Court of Australia with the Family Court and Federal Circuit Court of Australia. This would reduce administrative costs and provide additional opportunities to share facilities and streamline back-office functions to achieve more efficient administration of justice. 19

14. Terms of reference, in S Skehill, Strategic review of small and medium agencies in the Attorney-General’s Portfolio: report to the Australian Government, (Skehill Review), report prepared for the Department of Finance and Deregulation (DoF), DoF, Canberra, January 2012, p. vii, accessed 29 January 2016.

15. Ibid., pp. 37-38. The Family Law Courts Advisory Group also expanded its membership to take account of the integrated management of the two courts. 16. Ibid., p. 37. 17. N Roxon (Attorney-General), Review of Attorney-General portfolio agencies released, media release, 8 December 2012, accessed

29 January 2016. 18. Attorney-General’s Department (AGD), Annual report 2014-15, AGD, Canberra, 2015, pp. 23-24, accessed 29 January 2016. 19. National Commission of Audit (NCoA), Towards responsible government: report of Phase One, NCoA, Canberra, February 2014, p. 213.

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Independent Reviews It would appear that the Ernst and Young and the KPMG reports are not publicly available. However, the Explanatory Memorandum notes:

The 2014 KPMG review into the performance and funding of the federal courts examined and recommended incorporating the Federal Court into shared administration arrangements with the Family Court and Federal Circuit Court. The savings from this proposal were identified and further analysed in 2014-15 by Ernst & Young. 20

In September of 2014, the Law Council of Australia (Law Council) called for the Government to release the KPMG report into the funding of the Federal Courts for public comment.21

The President of the Law Council noted that:

If real progress is to be made in addressing the funding crisis facing the Federal Courts, the Government needs to review the recommendations of the report with input from key stakeholders, including the legal profession. 22

The Law Council commented that if media reports are accurate, they confirm what the legal profession has been saying for some years, that federal courts are drastically underfunded, and that the public is suffering as a result. The Law Council noted that the problems in the family law sector are ‘particularly severe’.23

Committee consideration Senate Selection of Bills Committee The Bill has been referred to the Senate Legal and Constitutional Affairs Committee for inquiry and report by 2 February 2016.24

Senate Standing Committee for the Scrutiny of Bills The Committee has made no comment on the Bill to date.

Position of major interest groups Family Court of Australia In a submission to the Senate Standing Committee on Legal and Constitutional Affairs inquiry into the Bill, the Family Court CEO raised serious concerns about proposed Part IIB of the Federal Court Act (at item 43 of Schedule 1 of the Bill) concerning the merged CEO entity for the courts. The Family Court CEO considers that in the provision of corporate services to the three courts, the Federal Court CEO is not answerable to any head of jurisdiction, including the Chief Justice of the Federal Court. The Family Court CEO comments:

There are no constraints on the exercise of [the Federal Court CEO’s] power [in providing corporate services], other than to consult with the heads of jurisdiction of the three courts and the Chief Executive Officers of the Family Court and the Federal Circuit Court [18Z(3)]. However, a failure to consult does not affect the validity of a decision [18Z(4)]. The only constraint on the exercise of power is that a decision which has the effect of imposing an expenditure obligation on any of the courts in relation to the administrative affairs of the Court cannot be made unless there is both [18Z(5)(d)]:

a) consultation with the Chief Justice or the Chief Judge by the Chief Executive Officer; and

b) the consent of the Chief Justice or the Chief Judge

If consent is not given, then the Attorney-General must consent to the decision after consultation with the Chief Justice or the Chief Judge [18Z[(5)](e)].

20. Explanatory Memorandum, op. cit., p. 7. 21. Law Council of Australia, Law Council calls on Government to release Federal Court funding report, media release, 2 September 2014, accessed 29 January 2016. 22. Ibid.

23. Ibid.

24. Senate Committee on Legal and Constitutional Affairs, Inquiry into the Courts Administration Legislation Amendment Bill 2015, accessed 1 February 2016.

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There is otherwise no constraint on decision making, nor any criteria for how decisions are to be made. Nor is there any provision for governance arrangements between the heads of jurisdiction, the Chief Executive Officers of the Family Court and the Federal Circuit Court and the Chief Executive Officer as to how a particular policy may be conceived, proposed and implemented. No board-like structure, where the relevant heads of jurisdiction can discuss policy or other matters which might affect the exercise of the Chief Executive Officer’s powers, is provided for in the Bill.

In essence then, subject only to the inability to take decisions which affect the administrative affairs of the Courts, the Chief Executive Officer can make whatever decisions he or she wishes, without the need to advise about what policy is being followed, why a decision is being made, or indeed to provide any transparency about decision making whatsoever.

25

Further the CEO comments:

The lack of requirement for any transparency in decision making becomes starker when regard is had to the potential conflict of interest that arises when giving a Chief Executive Officer of one court unconstrained power to make decisions that affect all three courts. With the greatest of respect, it is an unusual form of corporate management to have the Chief Executive Officer of one court responsible for corporate services of the other courts, with no accountability, requirement for transparency, nor an overseeing body, to set policy.

26

Law Council of Australia The Law Council supports the Bill, and in a submission to the Senate inquiry into the Bill, has welcomed commitments made by the Attorney-General that all savings accruing from this measure (to merge corporate services functions) would be re-invested in the court system and that the judicial vacancies in the Federal Circuit Court would be filled.27

Despite welcoming the re-investment of savings, the Law Council remains concerned about the resourcing of the federal courts system generally:

The Law Council remains concerned about the immediate lack of judicial resources in the Family Court and the Federal Circuit Court and the delay before the savings accruing from the passage of this Bill will be realised. Judges in these courts are already under significant pressure due to increasing workloads, the stressful nature of high-conflict proceedings, and the failure to quickly fill all judicial vacancies as they occur.

Judicial vacancies result in unacceptable delays in the listing of matters…

The provision of adequate judicial resourcing for both the Family Court and Federal Circuit Court, and ensuring that judges are replaced in a timely manner, are matters requiring urgent attention. 28

Financial implications The Explanatory Memorandum notes that the merging of the courts’ corporate functions is expected to deliver efficiencies to the courts of $9.4 million over the six financial years to 2020-21 and result in ongoing annual efficiencies of $5.4 million from this time.29 There was a commitment by the Attorney-General in December 2015 that those savings would be re-invested in the federal courts system.30 Whether this arrangement would continue under future governments is not clear.

Statement of Compatibility with Human Rights

25. Family Court of Australia, Submission to the Senate Legal and Constitutional Affairs Committee, Inquiry into the Courts Administration Legislation Amendment Bill 2015, pp. 2-3, accessed 12 January 2016. 26. Ibid.

27. Law Council of Australia, Submission to the Senate Legal and Constitutional Affairs Committee, Inquiry into the Courts Administration Legislation Amendment Bill 2015, p. 2, accessed 21 January 2016. 28. Ibid., p. 3. 29. Explanatory Memorandum, op. cit., p. 3. 30. G Brandis (Attorney-General), Putting federal courts on a sustainable footing, op. cit.

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As required under Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth), the Government has assessed the Bill’s compatibility with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of that Act. The Government considers the Bill to be compatible with those instruments.31

Parliamentary Joint Committee on Human Rights The Parliamentary Joint Committee on Human Rights has made no comment on this Bill to date.

Key issues and provisions Schedule 1—Federal Court of Australia Schedule 1 makes amendments to the Federal Court Act to exclude corporate services from the administrative affairs of the court for which the Chief Justice is responsible and to make the necessary adjustments required for a merged corporate services function for the Federal, Family and Federal Circuit Courts. The Bill will establish the merged courts administrative entity under the Public Governance, Performance and Accountability Act 201332 (PGPA Act), and the statutory agency under the Public Service Act.

The Chief Justice of the Federal Court is presently responsible under subsection 18A(1) of the Federal Court Act for managing the administrative affairs of the Court. To that end, the Chief Justice has power to do all things that are necessary or convenient to be done, including entering contracts and acquiring and disposing of property on behalf of the Commonwealth (subsection 18A((2)). Currently the Chief Justice cannot enter a contract which exceeds $250,000 without the approval of the Attorney-General. Item 7 proposes to alter this limit to $1,000,000.

Item 5 inserts proposed subsections 18A(1A) and (1B). Proposed subsection 18(1A) defines the administrative affairs of the court as not including the corporate services of the court. The matters described as corporate services of the court are set out in proposed subsection 18A(1B). Those matters are:

• communications

• finance

• human resources

• information technology

• libraries

• procurement and contract management

• property

• risk oversight and management

• statistics and

• any other matter prescribed by a determination under subsection 18A(5).33

Arrangements with other courts Item 11 inserts proposed section 18BAA. This new section will enable the Chief Justice of the Federal Court to make arrangements with the chief judicial officer of another court, for an officer of that court to perform on behalf of the Federal Court any or all of the functions set out at proposed paragraphs 18BAA(1)(a) to (f). Such functions are:

• receipt of documents to be lodged or filed in the Court

• signing and issuing of writs, commissions and process for the purposes of any proceedings in the Court

• authentication of orders of the Court

31. The Statement of Compatibility with Human Rights can be found at pages 4-6 of the Explanatory Memorandum to the Bill. 32. Public Governance, Performance and Accountability Act 2013, accessed 15 December 2015. 33. Courts Administration Legislation Amendment Bill 2015, Schedule 1, item 5, accessed 15 December 2015.

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• administration of oaths and affirmations, witnessing of affidavits for the purposes of proceedings

• such other non-judicial functions as permitted by the Rules of Court to be performed under an arrangement and

• such other non-judicial functions as the Chief Justice considers appropriate.34

If such an arrangement is in place, the officer of that court may perform the function on behalf of the Federal Court despite any other provision in the Federal Court Act or any other Commonwealth law (proposed subsection 18BAA(2)). The performance of that function on behalf of the Federal Court by an officer of another court has effect as if the function had been performed by the Federal Court (proposed subsection 18BAA(3)).

Item 12 repeals Division 1A of Part IIA of the Federal Court Act which contains a provision relating to the application of the PGPA Act to the existing Federal Court. This Division is replaced by proposed Division 2 of Part IIB which includes the new arrangements for the corporate services function and other matters for all three courts.

Item 14 repeals section 18C which currently allows the appointment of the Registrar by the Governor-General and substitutes it with proposed section 18C which establishes the position of Chief Executive Officer (CEO) and Principal Registrar of the Court to replace the existing position of Registrar. The CEO is to be appointed by the Governor-General on the nomination of the Chief Justice.

Merged Corporate Services Function

Part IIB consists of five Divisions:

• Division 1—Corporate services

• Division 2—Application of the PGPA Act

• Division 3—Application of the Public Service Act

• Division 4—Other powers of the Chief Executive Officer and

• Division 5—Other matters.

Division 1—Corporate services Item 43 inserts proposed Part IIB into the Federal Court Act, which will regulate the corporate services functions and other matters relating to the newly merged single administrative entity for the three Courts. Proposed section 18Z of Division 1 provides for the Federal Court CEO to be responsible for providing corporate services to all three Courts. The Federal Court CEO has the power to do all things necessary or convenient to be done in providing those services to the Courts (proposed subsection 18Z(2)). When performing his/her functions or exercising powers under section 18Z, the Federal Court CEO must consult with the following persons:

• the Chief Justice of the Federal Court

• the Chief Justice of the Family Court

• the Chief Judge of the Federal Circuit Court

• the CEO of the Family Court

• the CEO of the Federal Circuit Court35 (proposed subsection 18Z(3)).

However a failure to comply with subsection 18Z(3) does not render the decision invalid (proposed subsection 18Z(4)).

When performing functions or exercising powers under proposed section 18Z, the Federal Court CEO must not make a decision that would have the effect of placing an expenditure obligation on the Federal Court, the Family Court or the Federal Circuit Court in relation to the administrative affairs of any of those courts unless the CEO has consulted the relevant Chief Justice or Chief Judge, and that person consents to the decision, or the

34. Proposed section 18BAA of the Federal Court Act, at item 11 of Schedule 1 of the Courts Administration Legislation Amendment Bill 2015. 35. Currently the Family Court and the Federal Circuit Court share a CEO. Each court will now have its own CEO.

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Attorney-General consents to the decision after relevant consultation with the relevant Chief Justice or Chief Judge on the matter (proposed subsection 18Z(5)).

Under proposed subsection 18Z(6), the Federal Court CEO may delegate in writing any of his/her functions or powers under proposed section 18Z to a Registrar or registry staff member of the Court; or a Sheriff, Deputy Sheriff or Marshall of the Court. The Federal Court CEO may give written directions on how the function is to be performed or how the power is to be exercised (proposed subsection 18Z(7)) and the delegate must comply with any directions given by the Federal Court CEO (proposed subsection 18Z(8)).

Comment: The Family Court has serious concerns with these provisions. As mentioned above, the Family Court comments that it is ‘an unusual form of corporate management to have the Chief Executive Officer of one court responsible for corporate services of two other courts, with no accountability, requirement for transparency, nor an overseeing body, to set policy’.36 Chief Justice Bryant of the Family Court is reported to have said that ‘the legislation had addressed a number of “crucial issues”, but not “how decisions are to be made in the corporate services area and what, if any, governance arrangements should attend them”’.37

Application of the PGPA Act Proposed section 18ZB of Division 2 establishes the governance structure of the new administrative entity for the purposes of the PGPA Act. Proposed paragraph 18ZB(a) lists the persons who will comprise the listed entity38 for the purposes of the PGPA Act. The list will include those persons who currently form the Federal Court entity and the Family Court and Federal Circuit Court entity.39 Proposed paragraph 18ZB(b) provides that the listed entity will be known as the Federal Court of Australia. The Federal Court CEO is the accountable authority of the listed entity. The accountable authority is the person or body responsible for managing the entity for the purposes of the PGPA Act. The PGPA Act imposes a number of duties on accountable authorities (proposed paragraph 18ZB(c)). Briefly these are:

• to govern a Commonwealth entity (section 15)

• to establish and maintain systems relating to risk and control (section 16)

• to encourage cooperation with others (section 17)

• to take into account the risks and effects of requirements imposed on others in relation to the use or management of public resources (section 18) and

• to keep the responsible Minister and Finance Minister informed (section 19).40

Delegation of powers under the PGPA Act The accountable authority has the power, under subsection 110(1) of the PGPA Act, to delegate to an official of a non-corporate Commonwealth entity various powers, functions or duties under that Act). The accountable authority also has the power to delegate powers, functions or duties that have been delegated by the Finance Minister to the accountable authority under subsection 107(1) of the PGPA Act.

Proposed section 18ZC has the effect of limiting the delegation powers of the Federal Court CEO in relation to the administrative affairs of the Family Court and the Federal Circuit Court.41 Proposed paragraph 18ZC(a) provides that for the delegation of a matter relating to the administrative affairs of the Family Court, section 110 will apply as if the reference to ‘an official’ in that section is a reference to the Family Court CEO or the holder of

36. Family Court of Australia, Submission to the Senate Legal and Constitutional Affairs Committee, Inquiry into Courts Administration Legislation Amendment Bill 2015, accessed 28 January 2016. 37. N Berkovic, ‘Family law crisis ‘put kids at risk’’, op. cit. 38. A listed entity is a non-corporate Commonwealth entity prescribed by the PGPA Act or the PGPA Rules. All non-corporate Commonwealth

entities are “listed entities” except for Departments of State and Parliamentary Departments: Source: DoF, ‘Flipchart of Commonwealth Entities and Companies’, DoF website, accessed 28 January 2016. 39. The list refers to the CEOs of the courts, officers of the various courts and staff of the registries of the courts, the Native Title Registrar, Deputy Registrars of the National Native Title Tribunal and staff of the Tribunal as well as consultants engaged for the Tribunal. 40. Public Governance, Performance and Accountability Act 2013. See also Australian Government Solicitor (AGS), ‘Public Governance,

Performance and Accountability Act 2013—what are the key changes for FMA Act agencies?’, factsheet, 35, AGS, October 2013, accessed 21 December 2015. 41. ‘Administrative affairs’ are distinct from the ‘corporate services’ listed in proposed section 18A of the Federal Court Act, at item 5 of Schedule 1 of the Bill.

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an office or position nominated by the Family Court CEO. Similar provision is made under proposed paragraph 18ZC(b) for delegations relating to the administrative affairs of the Federal Circuit Court. The Explanatory Memorandum states that ‘the Federal Court CEO’s delegations powers would not be limited with respect to the administrative affairs of the Federal Court and National Native Title Tribunal, or the corporate services of the three courts.’42

Management of Appropriations for the merged entity Proposed section 18ZD applies if, in an Appropriation Act for the ordinary annual services of Government, there is a departmental item, an outcome for the listed entity relating to the administrative affairs of one or other of the three courts, and an outcome amount.43 There will be a single appropriation for the merged entity and the Federal Court CEO will be responsible for ensuring that the amount relating to an outcome is spent on that outcome.44 Before spending money on another or separate outcome for the listed entity, proposed subsection 18ZD(2) provides that the Federal Court CEO must consult and obtain the consent of the relevant Chief Justice or Chief Judge to the spending, or obtain the consent of the Attorney-General to the spending. Before giving consent, the Attorney-General must consult with the relevant Chief Justice or Chief Judge about the spending (proposed subsection 18ZD(3)). The Explanatory Memorandum describes section 18ZD as a ‘constraint on how the Federal Court CEO as accountable authority under the PGPA Act spends money for the merged administrative courts entity’.45 Further the Explanatory Memorandum notes:

New section 18ZD would have the effect of protecting the budgets related to the management of the administrative affairs of the courts, which heads of jurisdiction would have responsibility for managing, assisted by their respective CEOs. Each court’s ability to decide how to spend the money allocated in its budget would help safeguard the court’s independence.

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Application of the Public Service Act Proposed section 18ZE of Division 3 defines statutory agency for the purposes of the Public Service Act. Currently section 18Q defines ‘statutory agency’ under the Federal Court Act as comprising the Registrar and the Australian Public Service (APS) employees assisting the Registrar. It also provides that the Registrar is the head of the statutory agency. Section 18Q is repealed by item 36 of Schedule 1 of the Bill. Proposed section 18ZE provides that the merged statutory agency will comprise:

• the CEO of the Federal Court of Australia, who will be the head of the statutory agency and

• APS employees referred to in:

- section 18N of the Federal Court Act - section 38N of the Family Law Act - sections 101, 111A and 112 and subsections 106(1), 107(1), 109(1) and 110(1) of the Federal Circuit Court Act and

- subsection 130(3) of the Native Title Act.

Delegation of powers or functions under the Public Service Act Subsection 78(7) of the Public Service Act provides that an agency head may delegate to another person in writing any powers or functions under that Act.47 Proposed section 18ZG would limit the Federal Court CEO’s powers to delegate functions in respect of staff of the agency for a matter relating to the administrative affairs of the Family Court or the Federal Circuit Court to the respective CEOs of those two courts. The Explanatory Memorandum notes:

42. Explanatory Memorandum, Courts Administration Legislation Amendment Bill 2015, p. 23. 43. Listed entities are set out in proposed section 18ZB of the Federal Court Act, at item 43 of Schedule 1 of the Bill. 44. Explanatory Memorandum, op. cit., p. 24. 45. Ibid.

46. Ibid.

47. Public Service Act 1999, accessed 1 February 2016.

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This would ensure that the respective CEOs are delegated Public Service Act powers that would support their functions in relation to assisting heads of jurisdiction with administrative affairs. Subsection 78(9) of the Public Service Act would allow the Family Court CEO and the Federal Circuit Court CEO to sub-delegate these powers. 48

Chief Executive Officer of the Federal Court—other powers Proposed section 18ZH of Division 4 of Part IIB provides for the appointment of other court officers by the Federal Court CEO, thereby centralising the appointment functions of the new entity. The officers who may be appointed are those referred to in:

• Federal Court Act paragraphs 18N(1)(aa) to (e) which include such officers as registrars, district registrars, deputy district registrars, sheriffs, deputy sheriffs and marshals

• Family Law Act paragraphs 38N(1)(a) to (f) which include Principal registrar, registrars and deputy registrars, registry managers, family consultants and marshals and deputy marshals

• Federal Circuit Court Act paragraphs 99(1)(a) to (f) which include registrars, sheriff and deputy sheriffs, marshal and deputy marshals and family consultants and

• Native Title Act subsection 130(2) which refers to deputy registrars.

Proposed subsections 18ZH(2) and (3) provide that the Federal Court CEO may delegate his/her powers and functions relating to appointments of other court officers to the Family Court CEO and the Federal Circuit Court CEO.

Current section 18R of the Federal Court Act concerns the engagement of consultants for the Federal Court by the Registrar. This section is repealed by item 36 of Schedule 1 of the Bill. Proposed subsection 18ZI(1) provides that the Federal Court CEO may engage consultants with suitable qualifications and experience to perform services for the three courts and the National Native Title Tribunal. The Federal Court CEO may also engage people to provide family counselling services or family dispute resolution services under the Family Law Act— proposed subsection 18ZI(2). Such an engagement under subsections 18ZI(1) or (2) is made on behalf of the Commonwealth and by written agreement—proposed subsection 18ZI(3).

The CEO may delegate his/her powers under proposed subsections 18ZI(1) or (2) to either the Family Court CEO or the Federal Circuit Court CEO—proposed subsections 18ZI(4) and (5).

Proposed subsection 18ZK(1) enables an officer of the Federal Court, the Family Court and the Federal Circuit Court to be an officer of one or more of those courts. This will facilitate the movement of staff between the courts and allowing for greater flexibility. Proposed subsection 18ZK(2) provides that this is so despite anything in the Federal Court Act, the Family Law Court or the Federal Circuit Act.

Part 2—amendments commencing 1 January 2018 Items 63 and 64 of Schedule 1 reflect the amendments to the Family Law Act in Part 2 of Schedule 2 to merge the offices of Family Court Chief Executive Officer and Principal Registrar from 1 January 2018. Currently, paragraph 38N(1)(a) of the Family Law Act provides for the separate role of Principal Registrar. A transition period is provided in which to arrange the appointment of a person with the appropriate qualifications and expertise to the merged role of Family Court CEO and Principal Registrar.

Schedule 2—Family Court of Australia Schedule 2 amends the Family Law Act to establish the Family Court CEO as an independent CEO. Currently the Family Court and the Federal Circuit Court share a CEO. Each Court will now have a CEO to manage the corporate services of the Court.

Item 53, proposed subsection 38A(1A) makes clear that the administrative affairs of the Family Court for which the Chief Justice is responsible do not include corporate services. Matters which constitute corporate services are listed in proposed subsection 38A(1B) and mirror the definition inserted into proposed subsection 18(1B) of the Federal Court Act by item 5 of Schedule 1 of the Bill. As is the case with the Federal Court Act definition, the Attorney-General may determine matters that are corporate services for the court by legislative instrument— proposed subsection 38A(5) of the Family Law Act. Under item 56, the Chief Justice of the Family Court (as

48. Explanatory Memorandum, op. cit., p. 25.

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proposed in the Bill for the Chief Justice of the Federal Court), may enter contracts where the Commonwealth is to pay or receive an amount not exceeding $1,000,000—proposed subsection 38A(4). Currently subsection 38A(4) limits the amount to $250,000.

Item 59, proposed section 38BAA parallels proposed section 18BAA of the Federal Court Act (at item 11 of Schedule 1), allowing the Chief Justice of the Family Court to make arrangements with other courts for an officer of another court to perform functions on behalf of the Family Court.

Proposed subsection 38BAB(1) provides that the Chief Justice of the Family Court may arrange with the Chief Executive Officer of a Commonwealth, state or territory agency or another organisation to receive documents to be lodged or filed in the Court or to perform other non-judicial functions on behalf of the Court. If such an arrangement under subsection 38BAB(1) exists, the function may be performed despite any other provision in the Family Law Act or any other law of the Commonwealth—proposed subsection 38BAB(2). Any function performed on behalf of the Court in accordance with an arrangement made under subsection 38BAB(1) has effect as if the function had been performed by the Court—proposed subsection 38BAB(3). Copies of arrangements made by the Chief Justice with other agencies or organisations are to be made available to the public—proposed subsection 38BAB(4). This section mirrors existing section 18BA of the Federal Court Act, which allows the Federal Court to enter into arrangements with other agencies and organisations.

Part 2—amendments commencing 1 January 2018 The amendments to the Family Law Act made by Part 2 of Schedule 2 will commence on 1 January 2018. The role of Chief Executive Officer and Principal Registrar of the Family Court will be combined, as is proposed for the Federal Court. The amendments contained in Part 2 remove references to the Principal Registrar that indicate it to be a separate role to that of the Chief Executive Officer. The delayed commencement of this amendment (on 1 January 2018) allows time to appoint a person with the appropriate experience and expertise to the new combined role of Chief Executive Officer and Principal Registrar (proposed section 38C at item 101 of Schedule 2 of the Bill). The Chief Executive Officer will be appointed by the Governor-General on the nomination of the Chief Justice.

Schedule 3—Federal Circuit Court of Australia Schedule 3 establishes a Chief Executive Officer and Principal Registrar for the Federal Circuit Court. Item 2 inserts into section 5 of the Federal Circuit Court Act the definition of Chief Executive Officer for the Federal Circuit Court, which includes the role of the Principal Registrar of the Federal Circuit Court. Currently the Family Court CEO, appointed under section 38C of the Family Law Act is also the CEO of the Federal Circuit Court.

Item 5, proposed subsection 89(2), defines the administrative affairs of the Court, for which the Chief Judge of the Federal Circuit Court is responsible, as not including the corporate services of the Court. The list of matters that comprise corporate services of the court are set out in proposed subsection 89(2A). The list of matters is consistent with that for the Federal Court and the Family Court in Schedules 1 and 2.

Chief Executive Officer Item 9, proposed section 96A, establishes the position of Federal Circuit Court CEO. The CEO will be appointed by the Governor-General on nomination by the Chief Judge. Currently, the Family Court and the Federal Circuit Court share a CEO. Provisions relating to conditions of appointment, remuneration and so on of the Federal Circuit Court CEO in the Bill are consistent with those relating to the Family Court CEO, set out in Division 2 of Part IVA of the Family Law Act.

Remuneration Proposed section 96B provides that the Federal Circuit Court CEO is to be paid the remuneration and allowances determined by the Remuneration Tribunal. However if a determination does not exist, the Federal Circuit Court CEO is to be paid the remuneration and allowances that are prescribed. Such remuneration and allowances are payable out of money appropriated by Parliament for the purposes of the Federal Circuit Court.

Term of appointment The Federal Circuit Court CEO will be appointed for a term not exceeding five years specified in the instrument of appointment (proposed section 96C), but is eligible for re-appointment. The Chief Judge determines the terms and conditions for the CEO that are not provided for in the Act.

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Proposed section 96G provides that the Governor-General may terminate the appointment of the Federal Circuit Court CEO for misbehaviour or if the CEO is unable to perform the duties of office because of physical or mental incapacity. The Governor-General is required to terminate the appointment of the Federal Circuit Court CEO in the following instances:

• the CEO becomes bankrupt, takes steps to take the benefit of any law for the relief of bankrupt or insolvent debtors, compounds with one or more of his/her creditors, or makes an assignment of his/her remuneration for the benefit of one or more of his/her creditors

• the CEO is absent for 14 consecutive days or for 28 days in any 12 months, except on a leave of absence

• the CEO engages in paid employment contrary to section 96F

• the CEO fails to comply with section 96H without reasonable excuse. Proposed section 96H concerns the disclosure of all direct and indirect pecuniary interests and all material personal interests that relate to the affairs of the Federal Circuit Court or

• the CEO fails to comply with section 29 of the Public Governance, Performance and Accountability Act 2013 which also concerns the duty to disclose interests.

Disclosure of interests The Federal Circuit Court CEO is required under proposed section 96H to give written notice to the Chief Judge in relation to all direct or indirect pecuniary interests that the CEO has or acquires in any business or body corporate carrying on a business. This also applies to all material personal interests that relate to the affairs of the Federal Circuit Court. Proposed subsections 96H(1) and (2) apply in addition to section 29 of the PGPA Act, which also deals with the duty to disclose interests.

Schedule 4—National Native Title Tribunal The National Native Title Tribunal currently operates as a distinct organisational unit of the Federal Court of Australia. This came about as a result of an initiative in the 2012-13 Budget where the Government announced that it would implement the recommendations of the Skehill Review as they related to the National Native Title Tribunal.49

Items 1 to 14 and 16 to 33 amend the Native Title Act to change references from Registrar of the Federal Court to the Federal Court Chief Executive Officer. Section 128 of the Native Title Act concerns the management of the administrative affairs of the Tribunal. Item 15 repeals and substitutes the notes accompanying this section. Proposed note 1 makes reference to proposed Part IIB of the Federal Court Act for the provisions that will relate to the administrative affairs of the Tribunal (inserted by item 43 of Schedule 1). Proposed note 2 refers to the persons in the Tribunal who, for the purposes of the PGPA Act, are officials of the listed entity referred to in proposed section 18ZE of the Federal Court Act (inserted by item 43 of Schedule 1). Proposed note 3 states that APS employees referred to in subsection 130(3) of the Native Title Act are part of the statutory agency under section 18ZE of the Federal Court Act, for the purposes of the Public Service Act.

Schedule 5—Consequential Amendments

Part 1—Family Court Justice, Deputy Chief Justice and Judge Administrators Items 1 to 12 amend ten Acts to:

• replace references to the Chief Judge and Deputy Chief Judge of the Family Court with references to Chief Justice and Deputy Chief Justice and

• remove references to the Judge Administrator, a position which is no longer used by the Family Court. 50

Part 2—Chief Executive Officers—amendments commencing 1 July 2016 The majority of amendments in Part 2 update references in seven Acts relating to the Chief Executive Officer and Principal Registrar of the Federal Court. Part 2 omits the terms ‘the Registrar, a Deputy Registrar’ and substitutes

49. Courts and Tribunals Legislation Amendment (Administration) Act 2013, accessed 3 February 2016. N Roxon (Attorney-General), Review of Attorney-General portfolio agencies released, media release, 8 December 2012. 50. Explanatory Memorandum, op. cit., p. 53.

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‘the Chief Executive Officer and Principal Registrar’ or similar variations. This is to make the necessary amendments to various Acts to reflect the retitling of the position of Chief Executive Officer and Principal Registrar of the Federal Court who will be head of the new single administrative entity.

Part 3—Chief Executive Officers—amendments commencing 1 January 2018 As set out above, from 1 January 2018 the roles of CEO and Principal Registrar in the Family Court will be combined into one role. Part 3 contains consequential amendments to three Acts to reflect this change.

Schedule 6—Application and transitional provisions

Part 1—Definitions Part 1 contains definitions relating to the Application and Transitional provisions for Schedule 6.

Part 2—Names of offices, appointments Item 2 relates to the alteration of names of court offices made by the Bill (including changing the title of the Chief Judge and Deputy Chief Judge of the Family Court to the Chief Justice and Deputy Chief Justice; and changing the Registrar of the Federal Court to the Chief Executive Officer). Subsection 25B(1) of the Acts Interpretation Act 1901 provides that where the name of a body or office is altered the body or office continues in existence under its new name so that the identity is not affected.51 A reference to the body or office under the former name in any Act, instrument, award or other industrial determination or industrial agreement, in any other order, contract, in any pleading or process in connection with legal or other proceedings will be construed as a reference to the body or office under the new name. Subsection 25B(1) of the Acts Interpretation Act would apply automatically, but item 2 of Schedule 6 refers to its application to the office title changes made by the Bill ‘to avoid doubt’.

Item 3 concerns the continuity of appointment of the Federal Court Registrar. It provides that if a person is appointed as the Registrar of the Federal Court under section 18C of the Federal Court Act and that appointment is in force immediately before Part 1 of Schedule 1 of the Bill commences (1 July 2016), then the appointment continues in force and may be dealt with after that time as if the person had been appointed under new section 18C (inserted by item 14 of Schedule 1). Similar provisions in items 4 and 5 relate to the continuity of appointment of court officers and the engagement of consultants.

Item 6 provides that if a thing was done by or in relation to the Principal Registrar of the Family Court, then after the second commencement time, that is 1 January 2018, it is taken to have been done by the Family Court CEO and Principal Registrar. Rules may prescribe that subitem 6(1) does not apply in relation to a specified thing done by or in relation to the Principal Registrar of the Family Court before the second commencement time.

Part 3—Matters relating to the PGPA Act Item 7 provides for the continuity of the listed entity. The listed entity mentioned in existing section 18BB of the Federal Court Act continues in existence after the commencement time as the listed entity mentioned in new section 18ZB of the Federal Court Act (at item 43 of Schedule 1) so that the identity of the listed entity is not affected. Amendments proposed by the Bill do not affect the continued operation or effect after the commencement time of any instruments made before that time by or on behalf of the listed entity, the accountable authority or any official of the listed entity. The validity of anything done before the commencement time by or in relation to the listed entity, the accountable authority or any official of the listed entity is not affected by the amendments made by the Bill.

Item 8 provides for continuation of the reporting requirements of the old listed entity under section 38BAA of the Family Law Act. The reporting requirements in sections 39, 42 and 46 of the Public Governance, Performance and Accountability Act 2013 still apply for the reporting period to 30 June 2015, as if the old listed entity had not ceased to exist. This means that reports covering the activities of the Family Court and the Federal Circuit Court up to 30 June 2015 will still need to be prepared in accordance with the requirements of the PGPA Act.

51. Acts Interpretation Act 1901, accessed 2 February 2016.

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Part 4—Matters relating to APS employment Item 9 concerns the continuity of the Statutory Agency. The Statutory Agency currently mentioned in section 18Q of the Federal Court Act continues in existence on or after the commencement time as the Statutory Agency mentioned in new section 18ZE of the Federal Court Act (at item 43 of Schedule 1) so that its identity is not affected.

This means that after the commencement time, the continued operation of any instruments made before that time by or on behalf of the Statutory Agency, the Agency Head or an APS employee in the Statutory Agency are not affected. The validity or effect of anything done before the commencement time is not affected by the amendments made by the Bill.

Item 10 concerns the transfer of APS employees to the Federal Court statutory agency. An APS employee in the old Statutory Agency moves to the new Federal Court Statutory Agency at commencement time. Section 72 of the Public Service Act will not apply to transferred employees under this item. Section 72 concerns machinery of government changes where the Commissioner may determine that APS employees can be moved without their consent and they may become non-APS employees. However, subsection 72(5A) of the Public Service Act and regulations made under that provision will apply. This subsection provides that if an APS employee is moved from one agency to another agency under paragraph 72(1)(a) and certain prescribed circumstances existed in relation to the person’s employment with the first agency, then the Commissioner may determine the measures to be taken after the move to the new agency.52

Item 11 concerns the terms and conditions of employment for transferred employees. This item provides that transferring employees who are covered by an enterprise agreement immediately before the transfer continue to be covered by that agreement until a new enterprise agreement covering employees of the new Federal Court Statutory Agency is made. Any written policies or guidelines relating to the enterprise agreement that are in force prior to commencement time will also continue in force as if they had been made by the Federal Court CEO, until a new agreement comes into operation.

If a determination made under subsection 24(1) of the Public Service Act was applied to a transferred employee immediately before transfer, it continues in effect after transfer as if the determination had been made by the Federal Court CEO and was applicable to the person’s employment in the Federal Court Statutory Agency.

Item 12 concerns the terms and conditions of employment for new employees. The transferred agreement would apply to a new employee who becomes an APS employee in the new Federal Court Statutory Agency on or after 1 July 2016, until such time as a new agreement comes into operation that is made by the Federal Court CEO.

Concluding comments Although the Bill is generally welcomed by stakeholders in terms of the savings that will result and the Attorney-General’s commitment to re-invest them into the federal court system, there is still disquiet on the part of the Family Court as to how the merged entity will operate in practice. It is reported that the ‘Family Court has made it clear it is still deeply unhappy about being forced to give up control of its corporate services’.53

The Law Council and the Law Society of New South Wales have also noted their ‘particular concerns:

…about the capacity of the Federal Circuit Court to perform its important role as an intermediate federal (and federal circuit) court, and about delays in the Family Court, due to the constraints on the courts’ financial and judicial resources. 54

52. Regulation 8.3 of the Public Service Regulations 1999 (accessed 2 February 2016) sets out the relevant prescribed circumstances, including that the person has been suspended from duties in relation to an alleged breach of the Public Service Code of Conduct. 53. N Berkovic, ‘Family Court chief questions takeover plan’, The Australian, 22 January 2016, p. 23, accessed 29 January 2016. 54. Law Council of Australia, Submission to the Senate Legal and Constitutional Affairs Committee, Inquiry into the Courts Administration

Legislation Amendment Bill 2015, p. 5, accessed 22 January 2016.

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