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Part 1—Constitution

Part 1 Constitution

Division 1 Constitution

11   Appointment of Judges

             (1)  A Judge is to be appointed by the Governor-General by commission.

             (2)  A person is not to be appointed as a Judge unless:

                     (a)  the person is or has been:

                              (i)  a Judge of another court created by the Parliament or of a court of a State; or

                             (ii)  enrolled as a legal practitioner of the High Court, or the Supreme Court of a State or Territory, for at least 5 years; and

                     (b)  by reason of training, experience and personality, the person is a suitable person to deal with matters of family law.

             (3)  A person must not be appointed as a Judge if the person has attained the age of 70 years.

             (4)  The appointment of a Judge (including by way of promotion or to another judicial office) is to be for a term expiring upon the Judge attaining the age of 70 years.

Note 1:       Section 72 of the Constitution sets out requirements relating to the appointment and tenure of Judges.

Note 2:       Division 2 of this Part deals with terms and conditions of appointment.

12   Judges to be assigned to particular location

             (1)  The commission of appointment of a Judge must assign the Judge to a particular location. The Judge:

                     (a)  must not sit at another location on a permanent basis unless the Minister and the Chief Justice consent; and

                     (b)  cannot be required to sit at another location on a permanent basis unless the Judge consents (in addition to the consents required by paragraph (a)); and

                     (c)  may sit at another location on a temporary basis.

             (2)  In deciding whether to consent as mentioned in paragraph (1)(a), the Chief Justice has the same protection and immunity as if the Chief Justice were making that decision as, or as a member of, the Federal Circuit and Family Court of Australia (Division 1).

             (3)  Despite section 39B of the Judiciary Act 1903 , the Federal Court does not have jurisdiction with respect to a matter relating to the exercise by the Minister or the Chief Justice of the power to consent as mentioned in paragraph (1)(a).

13   Authorised Judges may manage classes of proceedings

             (1)  The Chief Justice may, by written instrument, authorise a Judge to manage such class or classes of proceedings as may be specified:

                     (a)  in the instrument; or

                     (b)  by the Rules of Court.

             (2)  In managing a class or classes of proceedings, a Judge is subject to any direction from the Chief Justice.

             (3)  The authorisation of a Judge does not affect the rank, title, status and precedence as a Judge that the Judge had immediately before any such authorisation.

             (4)  If a direction under subsection (2) is given in writing, the direction is not a legislative instrument.

14   Style

Chief Justice

             (1)  The Chief Justice is to be styled “the Honourable Chief Justice (name) of the Federal Circuit and Family Court of Australia (Division 1)”.

Deputy Chief Justice

             (2)  The Deputy Chief Justice is to be styled “the Honourable Deputy Chief Justice (name) of the Federal Circuit and Family Court of Australia (Division 1)”.

Other Judges

             (3)  A Judge (other than the Chief Justice or Deputy Chief Justice) is to be styled “the Honourable”.

Former Judges

             (4)  A former Judge is to be styled “the Honourable”.

15   Seniority

             (1)  The order of seniority of the Judges of the Federal Circuit and Family Court of Australia (Division 1) is as follows:

                     (a)  the Chief Justice;

                     (b)  the Deputy Chief Justice;

                     (c)  Senior Judges, according to the days on which their appointments as Senior Judges took effect;

                     (d)  Judges (other than Senior Judges), according to the days on which their appointments as Judges took effect.

             (2)  If 2 or more commissions of appointment as Judge took effect on the same day, those Judges have such seniority in relation to each other as is assigned to them by the Governor-General.

16   Oath or affirmation of allegiance and office

             (1)  Before proceeding to discharge the duties of office, a Judge must take:

                     (a)  an oath or affirmation of allegiance in the form in the Schedule to the Constitution; and

                     (b)  an oath or affirmation in accordance with the form set out in whichever of subsection (3) or (4) is applicable.

             (2)  The oaths or affirmations must be taken before:

                     (a)  the Chief Justice; or

                     (b)  a Justice of the High Court; or

                     (c)  another Judge of the Federal Circuit and Family Court of Australia (Division 1); or

                     (d)  a Judge of another court created by the Parliament.

Oath

             (3)  This is the form of oath for the purposes of paragraph (1)(b):

                   I,               , do swear that I will well and truly serve in the office of ( Chief Justice, Deputy Chief Justice, Senior Judge or Judge , as the case may be) of the Federal Circuit and Family Court of Australia (Division 1) 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!

Affirmation

             (4)  This is the form of affirmation for the purposes of paragraph (1)(b):

                   I,               , do solemnly and sincerely promise and declare that I will well and truly serve in the office of ( Chief Justice, Deputy Chief Justice, Senior Judge or Judge , as the case may be) of the Federal Circuit and Family Court of Australia (Division 1) and that I will do right to all manner of people according to law without fear or favour, affection or ill-will.

Division 2 Terms and conditions of judges

17   Remuneration

             (1)  A Judge is to be paid such remuneration as is determined by the Remuneration Tribunal.

             (2)  Subsection (1) has effect subject to the Remuneration Tribunal Act 1973 .

             (3)  In this section:

remuneration has the same meaning as in Part II of the Remuneration Tribunal Act 1973 .

Note 1:       A Judge’s remuneration may not be diminished during the Judge’s continuance in office: see paragraph 72(iii) of the Constitution.

Note 2:       Subsection 3(2) of the Remuneration Tribunal Act 1973 provides that a reference in Part II of that Act to remuneration is to be read as including a reference to annual allowances.

Note 3:       Under subsection 7(4) of the Remuneration Tribunal Act 1973 , the Remuneration Tribunal may determine any matter significantly related to the remuneration of Judges.

18   Resignation from office

             (1)  A Judge may resign office by delivering a written resignation to the Governor-General.

             (2)  The resignation takes effect on the day it is received by the Governor-General or, if a later day is specified in the resignation, on that later day.

19   Removal from office

                   A Judge must not be removed from office except by the Governor-General, on an address from both Houses of the Parliament in the same session, praying for the Judge’s removal on the ground of proved misbehaviour or incapacity.

Division 3 Judges of 2 or more courts

20   Dual appointments

Chief Justice

             (1)  Nothing in this Act prevents the Chief Justice of the Federal Circuit and Family Court of Australia (Division 1) from being appointed to, and holding at the same time, the office of Chief Judge of the Federal Circuit and Family Court of Australia (Division 2).

Deputy Chief Justice

             (2)  Nothing in this Act prevents the Deputy Chief Justice of the Federal Circuit and Family Court of Australia (Division 1) from being appointed to, and holding at the same time, the office of Deputy Chief Judge of the Federal Circuit and Family Court of Australia (Division 2).

21   Judge also holding office of a prescribed court

             (1)  Despite any provision of any other Act, a person may hold office at the one time as:

                     (a)  a Judge of the Federal Circuit and Family Court of Australia (Division 1); and

                     (b)  a Judge of a prescribed court or of 2 or more prescribed courts.

             (2)  In this section:

prescribed court means:

                     (a)  a court (other than the Federal Circuit and Family Court of Australia (Division 1)) created by the Parliament; or

                     (b)  the Supreme Court of the Northern Territory.

22   Judge also holding office of a State Family Court

                   If a person who holds office as a Judge of the Federal Circuit and Family Court of Australia (Division 1) is appointed or serves as a Judge of a Family Court of a State, the appointment or service does not affect:

                     (a)  the person’s tenure of office of Judge of the Federal Circuit and Family Court of Australia (Division 1); or

                     (b)  the person’s rank, title, status, precedence, salary or annual allowance, or other rights or privileges, as the holder of the office of Judge of the Federal Circuit and Family Court of Australia (Division 1);

and, for all purposes, the person’s service as a Judge of the Family Court of that State is taken to be service as the holder of the office of Judge of the Federal Circuit and Family Court of Australia (Division 1).

Division 4 Acting Chief Justice

23   Acting Chief Justice

             (1)  The Deputy Chief Justice may act as Chief Justice:

                     (a)  during a vacancy in the office of Chief Justice (whether or not an appointment has previously been made to the office); or

                     (b)  during any period, or during all periods, when the Chief Justice:

                              (i)  is absent from duty or from Australia; or

                             (ii)  is, for any reason, unable to perform the duties of the office.

Note:          For rules that apply to acting appointments, see sections 33AB and 33A of the Acts Interpretation Act 1901 .

             (2)  The Minister may, by written instrument, appoint a Judge to act as the Chief Justice:

                     (a)  during a vacancy in the offices of Chief Justice and Deputy Chief Justice (whether or not an appointment has previously been made to either office); or

                     (b)  during any period, or all periods, when both the Chief Justice and Deputy Chief Justice are unavailable because:

                              (i)  either or both Justices are absent from duty; or

                             (ii)  either or both Justices are absent from Australia; or

                            (iii)  either or both Justices are, for any reason, unable to perform the duties of the office.

Note:          For rules that apply to acting appointments, see sections 33AB and 33A of the Acts Interpretation Act 1901 .

             (3)  A person who is acting as Chief Justice is to be called Acting Chief Justice of the Federal Circuit and Family Court of Australia (Division 1).