Important Federal Legal System Legislation Changes Commenced

Commencement Proclamations have been notified for the following items of legislation affecting the federal legal system:

• Federal Circuit Court of Australia Legislation Amendment Act 2012

• Courts Legislation Amendment (Judicial Complaints) Act 2012

• Judicial Misbehaviour and Incapacity (Parliamentary Commissions) Act 2012

Federal Circuit Court of Australia Legislation Amendment Act 2012

The proclamation for this Act signed on 11 April 2012 fixes 12 April 2013 as the day on which Schedules 1 and 2 to the Act commence.

In general terms the Act amends the Federal Magistrates Act 1999 and other legislation to rename the Federal Magistrates Court as the Federal Circuit Court of Australia, and to change the titles of Chief Federal Magistrate to "Chief Judge" and Federal Magistrate to "Judge'. The name change from Federal Magistrates Court to Federal Circuit Court is not intended to create a new, separate federal court or to change existing entitlements for Federal Magistrates. The Act will continue the Court in existence under the new name and will not alter its jurisdiction or status as a court of record.

The provisions being commenced will have the following effect:

Schedule 1 amends the Federal Magistrates Act 1999 to rename the Court and its judicial officers and to make consequential amendments to statutory position titles associated with the Court, such as the "Registrar of the Federal Magistrates Court". Schedule 1 also amends the Judges’ Pensions Act 1968, Judges (Long Leave Payments) Act 1979, Maternity Leave (Commonwealth Employees) Act 1973 and Parliamentary Contributory Superannuation Act 1948 to preserve Federal Magistrates’ current entitlements.

Schedule 2 provides transitional and saving arrangements, including ensuring the continuity of the Federal Magistrates Court, Federal Magistrates and Court personnel, and existing arrangements for retired disabled Federal Magistrates.

The commencement of Schedules 1 and 2 will also have the related effect of causing Schedules 1 and 2 to the Federal Circuit Court of Australia (Consequential Amendments) Act 2013 to commence. Schedules 1 and 2 to that Act will update references to the Federal Magistrates Court or Federal Magistrates in Commonwealth legislation to reflect the new name for the Court and the new titles for its offices.

Courts Legislation Amendment (Judicial Complaints) Act 2012 and Judicial Misbehaviour and Incapacity (Parliamentary Commissions) Act 2012

The commencemnt proclamations signed on 11 April 2013 set 12 April 2013 as the date for commencement of Schedule 1 to the Courts Legislation Amendment (Judicial Complaints) Act 2012 (Judicial Complaints Act) and sections 3 to 83 of the Judicial Misbehaviour and Incapacity (Parliamentary Commissions) Act 2012 (Parliamentary Commissions Act).

The concurrent commencement dates are said by the government to ensure the practical steps necessary for implementation of the judicial complaints reforms can be jointly progressed, facilitating a smooth and coordinated transition to the new arrangements for the federal courts and other stakeholders.

Judicial Complaints Act

The Judicial Complaints Act together with the Parliamentary Commissions Act are according to the goevernment intended to introduce greater transparency and accountability into the handling of complaints about judicial officers in the federal courts other than the High Court of Australia.

Allegations of serious misconduct or incapacity relating to a High Court Justice may be appropriately referred to Parliament for consideration of removal from office under the Australian Constitution paragraph 72(ii), rather than being handled or investigated within the Court. This approach reflects the position of the High Court as the apex of the Australian judicial system and the special nature of its jurisdiction.

Schedule 1 to the Judicial Complaints Act amends the Family Law Act 1975, the Federal Court of Australia Act 1976, the Federal Magistrates Act 1999 and the Freedom of Information Act 1982 to:

• provide a statutory basis for the Chief Justice of the Federal Court, the Chief Justice of the Family Court and the Chief Federal Magistrate to deal with complaints about judicial officers

• provide protection from civil proceedings that could arise from a complaints handling process for a Chief Justice or the Chief Federal Magistrate as well as participants assisting them in the complaints handling process, and

• exclude from the operation of the Freedom of Information Act 1982 documents arising in the context of consideration and handling of a complaint about a judicial officer.

Parliamentary Commissions Act

The Parliamentary Commissions Act provides a standard mechanism for
parliamentary consideration of removal of a judge from office under of the Australian Constitution paragraph 72(ii).

The Australian Constitution at paragraph 72(ii) provides that Justices of the High Court and other courts created by the Parliament shall not be removed except by the Governor-General in Council, on an address from both Houses of Parliament in the same session, praying for such removal on the ground of proved misbehaviour or incapacity.

The legislation addresses the fact that currently, there is no standard mechanism by which allegations about misbehaviour or incapacity against federal judicial officers would be investigated to assist Parliament’s consideration of removal of a federal judicial officer. The legislation does this by establishing a Parliamentary Commission (comprised of three members, at least one of whom would be a retired justice of a federal court or a judge or retired judge of a State or Territory Supreme Court). The Commission will be able inquire into allegations of misconduct or incapacity and advise Parliament whether, in its opinion, facts amounting to proved misbehaviour or incapacity exist and would warrant consideration by Parliament of removal of the justice from office by means of the provisions of the Australian Constitution paragraph 72(ii).

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