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Part 1—Constitution

Part 1 Constitution

Division 1 Constitution

79   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 has been enrolled as a legal practitioner (however described) of the High Court, or a Supreme Court of a State or Territory, for at least 5 years; and

                     (b)  the person has appropriate knowledge, skills and experience to deal with the kinds of matters that may come before the Federal Circuit and Family Court of Australia (Division 2).

             (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.

80   Assignment of Judges to Divisions

                   The Governor-General may:

                     (a)  assign a Judge (other than the Chief Judge and Deputy Chief Judge) to one of the Divisions either:

                              (i)  in the commission of appointment of the Judge; or

                             (ii)  at a later time, with the consent of the Judge; and

                     (b)  vary any such assignment, with the consent of the Judge.

Note:          A Judge (including the Chief Judge and Deputy Chief Judge) who is not assigned to either Division of the Federal Circuit and Family Court of Australia (Division 2) may exercise the powers of the Court in either Division (see subsection 114(3)).

81   Authorised Judges may manage classes of proceedings

             (1)  The Chief Judge 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 Judge.

             (3)  A Judge may be authorised even though the Judge is not assigned to a Division.

             (4)  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.

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

82   Style

Chief Judge

             (1)  The Chief Judge is to be styled “His Honour Chief Judge (name) of the Federal Circuit and Family Court of Australia (Division 2)” or “Her Honour Chief Judge (name) of the Federal Circuit and Family Court of Australia (Division 2)”.

Deputy Chief Judge

             (2)  The Deputy Chief Judge is to be styled “His Honour Deputy Chief Judge (name) of the Federal Circuit and Family Court of Australia (Division 2)” or “Her Honour Deputy Chief Judge (name) of the Federal Circuit and Family Court of Australia (Division 2)”.

Other Judges

             (3)  A Judge (other than the Chief Judge and Deputy Chief Judge) is to be styled “His Honour Judge (name) ” or “Her Honour Judge (name) ”.

83   Oath or affirmation of office

             (1)  Before proceeding to discharge the duties of office, a Judge must take an oath or affirmation in accordance with the form set out in whichever of subsection (3) or (4) is applicable.

             (2)  The oath or affirmation must be taken before:

                     (a)  the Governor-General; or

                     (b)  a Justice of the High Court; or

                     (c)  a Judge of the Federal Court; or

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

                     (e)  another Judge of the Federal Circuit and Family Court of Australia (Division 2).

Oath

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

                   I,               , do swear that I will well and truly serve in the office of ( Chief Judge, Deputy Chief Judge or Judge , as the case may be) of the Federal Circuit and Family Court of Australia (Division 2) 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 subsection (1):

                   I,               , do solemnly and sincerely promise and declare that I will well and truly serve in the office of ( Chief Judge, Deputy Chief Judge or Judge , as the case may be) of the Federal Circuit and Family Court of Australia (Division 2) 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 serving Judges

84   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.

85   Leave

                   A Judge has the recreation leave entitlements that are determined by the Remuneration Tribunal.

86   Outside work

             (1)  A Judge must not engage in paid work outside the duties of the Judge’s office if that work is incompatible with the holding of a judicial office under Chapter III of the Constitution.

             (2)  A Judge must not:

                     (a)  engage in work as a legal practitioner; or

                     (b)  engage in work as an employee of, or consultant to, a legal practice.

             (3)  This section does not, by implication, limit the application to a Judge of any doctrine of constitutional incompatibility.

             (4)  In this section:

paid work means work for financial gain or reward (whether as an employee, a self-employed person or otherwise).

87   Other terms and conditions

             (1)  A Judge holds office on such terms and conditions (if any) in relation to matters not covered by this Act as are specified in a written determination made by the Governor-General for the purposes of this subsection.

             (2)  The Minister must cause a copy of a determination under subsection (1) to be tabled in each House of the Parliament.

             (3)  Either House may, following a motion upon notice, pass a resolution disallowing the determination. To be effective, the resolution must be passed within 15 sittings days of the House after the copy of the determination was tabled in the House.

             (4)  If neither House passes such a resolution, the determination takes effect on the day immediately after the last day that such a resolution could have been passed.

88   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.

89   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 Disability and death benefits

90   Certification of retired disabled Judges

             (1)  If:

                     (a)  a Judge retires; and

                     (b)  the Judge has not attained the age of 70 years;

the Minister may be requested to certify that the Judge is a retired disabled Judge.

             (2)  On receiving the request, the Minister must:

                     (a)  if the Minister is satisfied that the retirement was due to permanent disability or infirmity—certify that the Judge is a retired disabled Judge; or

                     (b)  otherwise—refuse to so certify.

             (3)  Applications may be made to the Administrative Appeals Tribunal for review of decisions of the Minister to refuse to so certify.

91   Pensions for retired disabled Judges

             (1)  A retired disabled Judge is entitled to a pension until the retired disabled Judge attains the age of 70 years or dies, whichever happens first.

Annual rate of pension

             (2)  The annual rate of the pension is 60% of the annual rate of salary the Judge would have been entitled to from time to time if the Judge had not retired.

             (3)  However, the rate of the pension must be reduced by the amount of any pension or retiring allowance:

                     (a)  payable to the Judge, whether under a law or otherwise, out of money provided in whole or in part by the Commonwealth, a State or a Territory (other than a Commonwealth superannuation contribution the Judge was entitled to under a determination under subsection 87(1)); and

                     (b)  payable to the Judge by reason of prior judicial service, or prior judicial service and any other service.

             (4)  For the purposes of subsection (2), the annual rate of salary is the annual rate of remuneration determined under section 84:

                     (a)  excluding any allowances that are paid in lieu of any other entitlement; and

                     (b)  if any arrangements have been entered into for any amount of the annual rate of remuneration (other than an allowance covered by paragraph (a)) to be provided in the form of another benefit—including that amount.

When pension is due and payable

             (5)  The pension is due daily, but is payable on the days that salary payments are made to Judges.

Safety, Rehabilitation and Compensation Act 1988

             (6)  For the purposes of Division 3 of Part II of the Safety, Rehabilitation and Compensation Act 1988 :

                     (a)  the pension is taken to be a pension payable to the Judge under a superannuation scheme; and

                     (b)  the Judge is not required to pay superannuation contributions to that scheme.

92   Superannuation for retired disabled Judges

             (1)  A retired disabled Judge who has not attained the age of 65 years is entitled to a Commonwealth superannuation contribution until the retired disabled Judge attains the age of 65 years or dies, whichever happens first.

             (2)  The amount of the Commonwealth superannuation contribution is the amount of the Commonwealth superannuation contribution (if any) the Judge would have been entitled to from time to time, under a determination under subsection 87(1), if the Judge had not retired.

             (3)  The Commonwealth superannuation contribution is to be made by payments on the days that salary payments are made to Judges.

93   Death benefits

             (1)  A payment is payable under this section if:

                     (a)  a Judge, or a retired disabled Judge, who has not attained the age of 65 years dies; and

                     (b)  the Judge leaves one or more eligible spouses or eligible children.

Amount

             (2)  The amount of the payment is the amount of the Commonwealth superannuation contribution (if any) the Judge would have been entitled to, under a determination under subsection 87(1), during the period in subsection (3) if:

                     (a)  the Judge had neither died nor retired before the end of that period; and

                     (b)  the amount of the Commonwealth superannuation contribution the Judge was entitled to under that determination did not change during that period.

             (3)  The period in this subsection is the period:

                     (a)  beginning on the day that the Judge died; and

                     (b)  ending on the day that the Judge would have attained the age of 65 years.

Beneficiaries

             (4)  The beneficiaries in respect of the payment are each eligible spouse and eligible child the Judge leaves.

             (5)  If there is only one beneficiary in respect of the payment, the payment is payable to the beneficiary.

             (6)  If there is more than one beneficiary in respect of the payment, the payment is payable to the beneficiaries in the proportions (totalling 100% of the amount of the payment) the Minister considers appropriate, having regard to the respective circumstances of each beneficiary.

Note:          For review of decisions under subsection (6), see subsection (10).

Beneficiaries—eligible children

             (7)  If the payment (or a proportion of the payment) is payable to an eligible child, the Minister may, in writing, direct that:

                     (a)  some or all of the payment or proportion be paid to a specified person for the benefit of the child (including for the support or education of the child); or

                     (b)  if the Minister is satisfied that, by reason of special circumstances, it is desirable to do so in the interests of the child—some or all of the payment or proportion be spent in a specified manner for the benefit of the child.

Note:          For review of decisions under subsection (7), see subsection (10).

             (8)  The Minister may be requested to give a direction under subsection (7) in respect of an eligible child.

             (9)  On receiving an application, the Minister must:

                     (a)  if the Minister is satisfied that the Minister should make a direction in respect of the child—give such a direction; or

                     (b)  if the Minister is not so satisfied—refuse to give such a direction.

Note:          For review of decisions under paragraph (9)(b), see subsection (10).

Applications for review

           (10)  Applications may be made to the Administrative Appeals Tribunal for review of the following decisions of the Minister:

                     (a)  a decision to determine the proportions of a payment under subsection (6);

                     (b)  a decision to give a direction under subsection (7);

                     (c)  a decision to refuse to give a direction under paragraph (9)(b).

94   Relationship definitions

Meaning of eligible spouse

             (1)  For the purposes of this Chapter, subsections (2), (3) and (4) set out the 3 circumstances in which a person is an eligible spouse of a Judge, or a retired disabled Judge, who dies.

             (2)  A person is an eligible spouse of a Judge who dies if the person had a marital or couple relationship with the Judge at the time of the death of the Judge.

             (3)  A person is an eligible spouse of a retired disabled Judge who dies if:

                     (a)  the person had a marital or couple relationship with the Judge at the time of the Judge’s death; and

                     (b)  the marital or couple relationship began:

                              (i)  before the Judge retired; or

                             (ii)  before the Judge attained the age of 60 years.

             (4)  A person is an eligible spouse of a Judge, or a retired disabled Judge, who dies if:

                     (a)  the person had previously had a marital or couple relationship with the Judge; and

                     (b)  the person did not, at the time of the Judge’s death, have a marital or couple relationship with the Judge but was legally married to the Judge; and

                     (c)  in the Minister’s opinion, the person was wholly or substantially dependent upon the Judge at the time of the Judge’s death; and

                     (d)  in the case of a marital or couple relationship that began after the Judge retired—the marital or couple relationship began before the Judge attained the age of 60 years.

Note:          For review of decisions under paragraph (4)(c), see subsection (9).

Meaning of marital or couple relationship

             (5)  For the purposes of this Chapter, a person had a marital or couple relationship with another person at a particular time if:

                     (a)  the person had been living with the other person as the other person’s husband, wife, spouse or partner for a continuous period of at least 3 years up to that time; or

                     (b)  both:

                              (i)  the person had been living with the other person as the other person’s husband, wife, spouse or partner for a continuous period of less than 3 years up to that time; and

                             (ii)  the Minister, having regard to any relevant evidence, is of the opinion that the person ordinarily lived with the other person as the other person’s husband, wife, spouse or partner on a permanent and bona fide domestic basis at that time;

whether or not the person was legally married to the other person.

Note 1:       Subsection (7) lists some of the evidence relevant to subparagraph (5)(b)(ii).

Note 2:       For review of decisions under subparagraph (5)(b)(ii), see subsection (9).

             (6)  For the purposes of this Chapter, a marital or couple relationship is taken to have begun at the beginning of the continuous period mentioned in paragraph (5)(a) or subparagraph (5)(b)(i).

             (7)  For the purpose of subparagraph (5)(b)(ii), relevant evidence includes, but is not limited to, evidence establishing any of the following:

                     (a)  that the person was wholly or substantially dependent on that other person at the time;

                     (b)  that the persons were legally married to each other at the time;

                     (c)  that the persons’ relationship was registered under a law of a State or Territory prescribed for the purposes of section 2E of the Acts Interpretation Act 1901 as a kind of relationship prescribed for the purposes of that section;

                     (d)  that the persons had a child who was:

                              (i)  born of the relationship between the persons; or

                             (ii)  adopted by the persons during the period of the relationship; or

                            (iii)  a child of both of the persons within the meaning of the Family Law Act 1975 ;

                     (e)  that the persons jointly owned a home which was their usual residence.

Meaning of living with a person

             (8)  For the purposes of this Chapter, a person is taken to be living with another person if the Minister is satisfied that the person would have been living with that other person except for a period of:

                     (a)  temporary absence; or

                     (b)  absence because of special circumstances (for example, absence because of the person’s illness or infirmity).

Note:          For review of decisions under subsection (8), see subsection (9).

Applications for review

             (9)  Applications may be made to the Administrative Appeals Tribunal for review of decisions of the Minister under paragraph (4)(c), subparagraph (5)(b)(ii) or subsection (8).

95   Meaning of eligible child

             (1)  For the purposes of this Chapter, a person is an eligible child of a Judge, or a retired disabled Judge, who dies if:

                     (a)  the person:

                              (i)  has not attained the age of 16 years; or

                             (ii)  has not attained the age of 25 years and is receiving full-time education at a school, college or university; and

                     (b)  one of the following applies:

                              (i)  the person is a child or adopted child of the Judge;

                             (ii)  the person is a child of the Judge within the meaning of the Family Law Act 1975 ;

                            (iii)  in the Minister’s opinion, the person was wholly or substantially dependent on the Judge at the time of the Judge’s death;

                            (iv)  in the Minister’s opinion, the person would have been wholly or substantially dependent on the Judge but for the Judge’s death.

             (2)  Applications may be made to the Administrative Appeals Tribunal for review of decisions of the Minister under subparagraph (1)(b)(iii) or (iv).

96   Appropriation

                   The following are to be paid out of the Consolidated Revenue Fund, which is appropriated accordingly:

                     (a)  pensions under section 91;

                     (b)  Commonwealth superannuation contributions under section 92;

                     (c)  payments under section 93.

Division 4 Judges of 2 or more courts

97   Dual appointments

Chief Judge

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

Deputy Chief Judge

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

Division 5 Acting Chief Judge

98   Acting Chief Judge

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

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

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

                              (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 Judge:

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

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

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

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

                            (iii)  either or both Judges 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 Judge is to be called Acting Chief Judge of the Federal Circuit and Family Court of Australia (Division 2).

             (4)  For the purposes of this Chapter, a person who is acting as Chief Judge is taken not to be assigned to either Division of the Federal Circuit and Family Court of Australia (Division 2).

Note:          A Judge who is not assigned to either Division of the Federal Circuit and Family Court of Australia (Division 2) may exercise the powers of the Court in either Division (see subsection 114(3)).