FEDERAL MAGISTRATES ACT 1999 NO. 193, 1999 - SCHEDULE 1 - Personnel provisions relating to Federal Magistrates

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FEDERAL MAGISTRATES ACT 1999 NO. 193, 1999 - SCHEDULE 1

- Personnel provisions relating to Federal Magistrates

: Note: See section 9.

1 Appointment of Federal Magistrates

(1): A Federal Magistrate is to be appointed by the Governor-General by commission.
(2): A person is not to be appointed as a Federal Magistrate unless he or she has been enrolled as a legal practitioner (however described) of:

(a): the High Court; or
(b): a Supreme Court of a State or Territory;

for at least 5 years.

(3): A person must not be appointed as a Federal Magistrate if he or she has attained the age of 70 years.
(4): The appointment of a Federal Magistrate is to be for a term expiring upon his or her attaining the age of 70 years.
(5): The Chief Federal Magistrate holds office on a full-time basis.
(6): A Federal Magistrate (other than the Chief Federal Magistrate) holds office on a full-time basis unless the Federal Magistrate's commission of appointment specifies that the Federal Magistrate holds office on a part-time basis.
(7): A reference in this clause to the appointment of a Federal Magistrate is to be read as including:

(a): a reference to the appointment of a person who holds office as a Federal Magistrate (other than the Chief Federal Magistrate) to the office of Chief Federal Magistrate; and
(b): a reference to the appointment of a person who holds office as Chief Federal Magistrate to an office of Federal Magistrate (other than the Chief Federal Magistrate); and
(c): a reference to the appointment of a person who holds office as a Federal Magistrate on a part-time basis to another office of Federal Magistrate on a full-time basis; and
(d): a reference to the appointment of a person who holds office as a Federal Magistrate on a full-time basis to another office of Federal Magistrate on a part-time basis.

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

2 Style

Chief Federal Magistrate

(1): The Chief Federal Magistrate is to be styled " Chief Federal Magistrate (name) " or " (name) CFM".

Other Federal Magistrates

(2): A Federal Magistrate (other than the Chief Federal Magistrate) is to be styled "Federal Magistrate (name) " or " (name) FM".

3 Oath or affirmation of office

(1): Before proceeding to discharge the duties of his or her office, a Federal Magistrate must take an oath or affirmation in accordance with the form set out in whichever of subclause (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 Family Court; or
(d): a Judge of the Federal Court; or
(e): another Federal Magistrate.

Oath

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

I, , do swear that I will well and truly serve in the office of ( Chief Federal Magistrate or Federal Magistrate, as the case requires ) 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 subclause (1):

I, , do solemnly and sincerely promise and declare that I will well and truly serve in the office of ( Chief Federal Magistrate or Federal Magistrate, as the case requires ) and that I will do right to all manner of people according to law without fear or favour, affection or ill-will.

4 Outside work

(1): A Federal Magistrate must not engage in paid work outside the duties of the Federal Magistrate's office if that work is incompatible with the holding of a judicial office under Chapter III of the Constitution.
(2): A Federal Magistrate 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 clause does not, by implication, limit the application to a Federal Magistrate of any doctrine of constitutional incompatibility.
(4): In this clause:

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

5 Remuneration

(1): A Federal Magistrate is to be paid such remuneration as is determined by the Remuneration Tribunal.
(2): Subclause (1) has effect subject to the Remuneration Tribunal Act 1973 .
(3): To avoid doubt, for the purposes of paragraph 7(5B)(a) of the Remuneration Tribunal Act 1973 , a Federal Magistrate is the holder of an office of Justice of a federal court.
(4): In this clause:

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

: Note 1: 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.

6 Leave

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

7 Resignation from office

(1): A Federal Magistrate may resign his or her office by writing under his or her hand delivered 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.

8 Other terms and conditions

(1): A Federal Magistrate 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 subclause.
(2): The Minister must cause a copy of a determination under subclause (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 upon which such a resolution could have been passed.

9 Removal from office

A Federal Magistrate 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 his or her removal on the ground of proved misbehaviour or incapacity.

10 Acting Chief Federal Magistrate

(1): The Minister may appoint a Federal Magistrate to act as Chief Federal Magistrate:

(a): during a vacancy in the office of Chief Federal Magistrate; or
(b): during any period, or all periods, when the Chief Federal Magistrate is absent from duty or from Australia, or is, for any reason, unable to perform the duties of the office.

: Note: See also section 33A of the Acts Interpretation Act 1901 .

(2): Anything done by or in relation to a person purporting to act under such an appointment is not invalid merely because:

(a): the occasion for the appointment had not arisen; or
(b): there was a defect or irregularity in connection with the appointment; or
(c): the appointment had ceased to have effect; or
(d): the occasion to act had not arisen or had ceased.

11 Remuneration of a Federal Magistrate not to be
diminished

(1): The remuneration of a Federal Magistrate is not to be diminished during his or her continuance in office.
(2): In subclause (1):

"remuneration" has the same meaning as in paragraph 72(iii) of the Constitution.

"diminished" has the same meaning as in paragraph 72(iii) of the Constitution.

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