Constitution of Urabba Parks/Section 72

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Chapter 3 >>Part 1 >>Division 2 >>Section 72

Judges’ appointment, tenure and remuneration

(1)  Directors of the Court of Directors and members of other judicial bodies created by the Parliament (judicial officers):

(a)  shall be appointed by the Manager‑General in Council upon presentation of a member of Urabba Parks holding service membership having rights to present to a judicial office of a certain kind of which may be redeemed for no consideration upon removal for misbehaviour under paragraph (c);

(b)  cease to hold office:

(i)  by ceasing to have the qualifications or reaching the maximum age applicable to the appointment of the judicial officer or the presentation of the presenter;

(ii)  under any law that is effective upon the judicial officer or presenter; or

(iii)  if the presenter ceases presentation; or

(c)  may be removed by the Manager‑General in Council, on an address agreed to by each House of the Parliament in the same session praying for such removal on the grounds of proved misbehaviour or incapacity, provided a resolution praying for the removal from office or cessation of the presentation is void if:

(i)  an investigating panel has not concluded that facts exist that could amount to proved misbehaviour or incapacity such as to warrant the removal of that judicial officer from office unless this subparagraph does not apply; or

(ii)  if subparagraph (i) does not apply – the Visitatorial Commission has not concluded that facts exist that could amount to proved misbehaviour or incapacity such as to warrant the removal of that judicial officer from office, unless there are no Commissioners of the Visitatorial Commission who may act in relation to the matter of the proposed removal.

(2)  Subparagraph (1)(c)(i) does not apply within 21 days of a referral of the alleged misbehaviour or incapacity for investigation unless the investigating panel:

(a)  is appointed and referred to by:

(i)  the Judicial Oversight Board of Urabba Parks, but only if the appointment and referral to the panel is approved by at least one member who is or has been an occupant of a judicial place (category J), and at least one member who has never held a judicial place, and the appointment is not vested under law in a shared judicial oversight board;

(ii)  a body consisting of at least one member who falls in paragraph (a) and at least one member who falls in paragraph (b) of the definition of shared judicial oversight board in subsection 4(1);

(iii)  in the case of an appointment or referral not being able to be made by a body falling in subparagraphs (i) or (ii) – the Visitatorial Commission, but only if there is one member of the Commission eligible to act in relation to the appointment or referral; or

(iv)  in any other case – by the Advocate‑General (or other Minister acting as the Chief Legal Officer of Urabba Parks); and

(b)  consists of:

(i)  one member who is or has been an occupant of a judicial place or in the case of appointment by a shared judicial oversight board – one member who is or has been in a class of officers exercising the judicial power of a jurisdiction for which referrals of alleged misbehaviour or incapacity may be referred by the shared judicial oversight board; and

(ii)  one member who has never been an occupant of a judicial place or in the case of appointment by a shared judicial oversight board, one member who has never occupied a place falling in subparagraph (i).

Remuneration and other benefits

(3)  The presenter of a judicial officer is entitled to:

(a)  annual presentation fees set by the Parliament that are an approved benefits falling in the table in subsection 90(3), or was an approved benefit at the time the judicial officer was appointed; and

(b)  accumulate upon the service membership constituting the commission of the judicial officer charity distributions to a rate as imposed under law.

(4)  Presentations shall be on an honorary basis unless an annual presentation fee has been set under paragraph (3)(a).

(5)  No presentation fee or rate of charity distribution provided under this section shall be diminished during the judicial officer’s continuance in office.

Law relating to qualifications and vacancies

(6)  Unless otherwise provided under law, the maximum age for a judicial officer is 70 years.

(7)  A law subject to this Subdivision is void to the extent the law:

(a)  imposes a qualification of either or both:

(i)  a judicial officer currently appointed; or

(ii)  a presenter of a judicial officer currently appointed;

where such qualification did not exist prior to enactment;

(b)  lowers the maximum age effective on a judicial officer appointed before enactment;

(c)  creates a circumstance in which results:

(i)  in the vacancy in the place of a judicial officer; or

(ii)  in the cessation of presentation of a judicial officer except by instigation or with consent of the presenter;

where such circumstance did not exist prior to enactment, unless the judicial officer consents to the operation of the law or the judicial officer is a member of a constituency in an entrenchment the law falls in.

Resignation

(8)  A judicial officer may resign by giving signed notice delivered to the Manager‑General.

Relevant notes from the Explanatory Memorandum

198. This section, based partially on the corresponding section of the Australian Constitution, provides for the appointment and remuneration of judicial officers (members of the Court of Directors and other courts the Parliament creates). Under subsection (1):

(A) a judicial officer is appointed by the Manager‑General in Council upon presentation of the holder of service membership having rights to appoint to the body to which the person is to be appointed a judicial officer of which may be redeemed for no consideration upon removal for misbehaviour – appointing judicial officers on the presentation of the member ensures the independence of judiciary, but especially the Directors of the Court; the presenter is the only relevant member who may vote in relation to the removal of a judicial director who is a Director, and while it is intended the presenter would the judicial officer themselves, the presenter could be a partnership of which the judicial officer is partner or a company carrying on a professional practice of the judicial officer;

(B) a judicial officer ceases to hold office by ceasing to have the qualifications or reaching the maximum age applicable to the appointment of the judicial officer or the presentation of the presenter, or if the presenter ceases presentation; and

(C) the Manager‑General in Council may remove a judicial officer on an address agreed to by a three-fifths majority of the members of each House of the Parliament in the same session, praying for such removal on the grounds of proved misbehaviour or incapacity – there is a requirement to have an investigating panel to conclude that that facts exist that could amount to proved misbehaviour or incapacity –an investigating panel is defined as being appointed by the Judicial Oversight Board or a shared judicial oversight board as defined in subsection 4(1) (or in some cases by the Visitatorial Commission or the Advocate General or other Minister acting as the Chief Legal Officer) with at least two members, one being the current or former holder of a judicial place (category J), the other never having held a judicial place (there is also provision for non-state jurisdictions to form shared judicial oversight boards as well to perform functions of appointing an investigating panel).

199. Subsection (4) provides that judicial officers serve on an honorary (unpaid) basis unless a presentation fee is set. Under subsection (5), presenters of judicial officers are remunerated by way of a presentation fee set by the Parliament, which is invoiced by the presenter to the Founder in Right of Urabba Parks. Having the remuneration by way of a presentation fee rather than a salary balances the rule against the reduction in remuneration (important to the independence of the judiciary) and other cash flow requirements of Government. It is intended that the presentation fee is set at a level that reflects the responsibility of judicial officers and which is sustainable in relation to the cash flow requirements of Government.

200. Subsection (6) provides the maximum age for a judicial officer, unless the Parliament otherwise provides, is 70.

201. Subsection (7) provides extra independence safeguards such as excluding judicial officers from the effect of the imposition qualifications or circumstances of vacancy of office or the lowering of the retirement age during a judicial officer’s continuance in office where such circumstance did not exist prior to enactment, unless the judicial officer consents to the operation of the law or the judicial officer is a member of a constituency in an entrenchment the law falls in.

202. Subsection (8) provides a judicial officer may resign from office.