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Native Title Amendment Bill 1996
Schedule 2 Amendment of other Acts

Part 1—Federal Court of Australia Act 1976

1  After section 18

Insert:

Division 2 Judicial Registrars

18AA   Judicial Registrars

             (1)  The Governor-General may appoint one or more Judicial Registrars.

             (2)  A Judicial Registrar may be appointed either on a full-time basis or a part-time basis.

18AB   Powers of Judicial Registrars

             (1)  The Judges, or a majority of them, may make Rules of Court delegating to the Judicial Registrars all or any of the following powers of the Court:

                     (a)  to determine parties to proceedings under the Native Title Act 1993 ;

                     (b)  to make orders under sections 86C and 87 of that Act.

             (2)  Without limiting subsection (1), Rules of Court made in respect of that subsection:

                     (a)  may delegate to the Judicial Registrars powers that could be delegated to the Registrar of the Court; and

                     (b)  may so delegate powers by reference to powers that have been delegated to the Registrar of the Court under section 35A.

             (3)  A power delegated to the Judicial Registrars is, when exercised by a Judicial Registrar, taken to have been exercised by the Court or a Judge, as the case requires.

             (4)  The delegation of a power to the Judicial Registrars does not prevent the exercise of the power by the Court or a Judge.

             (5)  The provisions of this Act, the regulations and the Rules of Court, and of other laws of the Commonwealth, that relate to the exercise of a power by the Court apply, in relation to an exercise of the power by a Judicial Registrar under a delegation under subsection (1), as if a reference to the Court or a Judge, or to a court exercising jurisdiction under this Act, were a reference to a Judicial Registrar.

             (6)  As well as the powers delegated under subsection (1), the Judicial Registrars have such other powers as are conferred on them by this Act, the regulations or the Rules of Court.

18AC   Review of decisions of Judicial Registrars

             (1)  A party to a proceeding may apply to the Court to review a Judicial Registrar’s exercise in the proceeding of a power delegated under section 18AB. An application must be made within the period prescribed by the Rules of Court or such further period as is allowed in accordance with the Rules.

             (2)  On an application under subsection (1) or of its own motion, the Court may review a Judicial Registrar’s exercise of a power so delegated. The Court may make whatever order it considers appropriate in relation to the matter in relation to which the power was exercised.

             (3)  On the application of a party or of its own motion, the Court may refer to a Full Court an application under subsection (1).

18AD   Exercise by Court of delegated powers

             (1)  If:

                     (a)  an application for the exercise of a power delegated under section 18AB is to be, or is being, heard by a Judicial Registrar; and

                     (b)  the Judicial Registrar considers that it is not appropriate for him or her to determine the application;

he or she must not hear, or continue to hear, the application, and must instead notify the Registrar of that fact so that the Registrar may make appropriate arrangements for the Court to hear the application.

             (2)  If a Judicial Registrar proposes to exercise in a particular case a power delegated under section 18AB but has not begun to exercise the power in that case, a Judge may order that the power be exercised in that case by a Judge.

             (3)  An order under subsection (2) may only be made on application by a person who would be a party to the proceeding before the Judicial Registrar in relation to the proposed exercise of the power.

             (4)  If an application is made under subsection (3), the Judicial Registrar must not exercise the power in that case until the application has been determined.

18AE   Independence of Judicial Registrars

                   Despite anything else in this Act or in any other law, a Judicial Registrar is not subject to the direction or control of any person or body in the exercise of a power delegated under section 18AB.

18AF   Qualification for appointment etc.

                   A person may be appointed as a Judicial Registrar only if the person has been enrolled for at least 5 years as a legal practitioner of the High Court or of the Supreme Court of a State or Territory.

18AG   Term of office

             (1)  The instrument appointing a Judicial Registrar must specify as the date of effect of the appointment a day that is not earlier than the day when the instrument is signed.

             (2)  Subject to this Act, a Judicial Registrar holds office for the term (not exceeding 5 years) specified in the instrument of appointment.

             (3)  Subject to this Act, a Judicial Registrar is eligible for re-appointment.

18AH   Remuneration and allowances

             (1)  A Judicial Registrar is to be paid such remuneration as the Remuneration Tribunal determines.

             (2)  A Judicial Registrar is to be paid such allowances as the regulations prescribe.

             (3)  This section has effect subject to the Remuneration Tribunal Act 1973 .

             (4)  Remuneration and allowances payable to the Judicial Registrars are to be paid out of money appropriated by the Parliament for the purposes of the Court.

18AI   Leave of absence

             (1)  Subject to section 87E of the Public Service Act 1922 , a person appointed as a full-time Judicial Registrar has such recreation leave entitlements as the Remuneration Tribunal determines.

             (2)  The Chief Judge may grant a person appointed as a full-time Judicial Registrar leave of absence, other than recreation leave, on such terms and conditions as to remuneration or otherwise as the Chief Judge, with the Attorney-General’s approval, determines.

18AJ   Resignation

                   A Judicial Registrar may resign by delivering to the Governor-General a signed resignation. A resignation takes effect on the day when the Governor-General receives it, or on such later day as it specifies.

18AK   Termination of appointment

             (1)  The Governor-General may terminate a Judicial Registrar’s appointment for misbehaviour or physical or mental incapacity.

             (2)  The Governor-General must terminate a Judicial Registrar’s appointment if the Judicial Registrar becomes bankrupt, applies to take the benefit of a law for the relief of bankrupt or insolvent debtors, compounds with creditors or makes an assignment of remuneration for their benefit.

             (3)  The Governor-General may, with the consent of a Judicial Registrar who is:

                     (a)  an eligible employee for the purposes of the Superannuation Act 1976 ; or

                     (b)  a member of the superannuation scheme established by deed under the Superannuation Act 1990 ;

retire the Judicial Registrar from office on the ground of incapacity.

             (4)  In spite of anything contained in this section, if the Judicial Registrar:

                     (a)  is an eligible employee for the purposes of the Superannuation Act 1976 ; and

                     (b)  has not reached his or her maximum retiring age within the meaning of that Act;

he or she is not capable of being retired from office on the ground of invalidity within the meaning of Part IVA of that Act unless the Commonwealth Superannuation Board of Trustees No. 2 has given a certificate under section 54C of that Act.

             (5)  In spite of anything contained in this section, if the Judicial Registrar:

                     (a)  is a member of the superannuation scheme established by deed under the Superannuation Act 1990 ; and

                     (b)  is under 60 years of age;

he or she is not capable of being retired from office on the ground of invalidity within the meaning of that Act unless the Commonwealth Superannuation Board of Trustees No. 1 has given a certificate under section 13 of that Act.

18AL   Oath or affirmation of office

                   Before proceeding to discharge the duties of his or her office, a Judicial Registrar must take an oath, or make an affirmation, before a Judge of the Court in the following form:

                   “I, .............., do swear that I will well and truly serve in the office of Judicial Registrar of the Federal Court of Australia and that I will do right to all manner of people according to law, without fear or favour, affection or ill will, So help me God!”

                   or

                   “I, ............, do solemnly and sincerely promise and declare that (as above, omitting the words “So help me God”).

18AM   Other terms and conditions of appointment

                   A Judicial Registrar holds office on such terms and conditions (if any) in relation to matters not provided for by this Act as the Governor-General determines in writing.

2  Subsections 59(3) and (4)

After “under this section”, insert “under this Act”.



 

Part 2—Contingent amendments of the Federal Court of Australia Act 1976 concerning Judicial Registrars

3  Consequences of certain prior amendments of the Federal Court of Australia Act 1976

If, on any day before item 1 of this Schedule commences, the Federal Court of Australia Act 1976 is amended by any Act inserting a new section 18AA providing for the appointment of Judicial Registrars of the Federal Court of Australia and a new section 18AB allowing those Judicial Registrars to exercise specified powers, then, with effect from that day or the day this Act receives the Royal Assent, whichever occurs first, items 1 and 2 are omitted from this Schedule and the following items are substituted:

1  After subsection 18AB(2)

Insert:

          (2A)  The Judges, or a majority of them, may also make Rules of Court delegating to the Judicial Registrars all or any of the following powers of the Court:

                     (a)  to determine parties to proceedings under the Native Title Act 1993 ;

                     (b)  to make orders under sections 86C and 87 of that Act.

2  Subsections 18AB(3), (6) and (7)

After “subsection (1)” (wherever occurring), insert “or (2A)”.



 

Part 3—Human Rights and Equal Opportunity Commission Act 1986

4  At the end of subsection 46C(1)

Add:

Note:          Functions are also conferred on the Commission under section 209 of the Native Title Act 1993 .