A senior member of the (now extinct) Administrative Appeals Tribunal (AAT) was not entitled to an AAT salary from the moment of her appointment overseas as a deputy judge, writes Sergio Zanotti Stagliorio.
In the recent matter of Kirk v Commonwealth of Australia [2025] FCA 838, Justice Stephen McDonald ruled, in summary, that:
This appears to be the first judgment in Australia dealing with this issue.
Background
On 21 May 2024, a (then) senior member of the AAT was notified that she had been appointed as a deputy judge of the Upper Tribunal, Immigration and Asylum Chamber of the United Kingdom (Upper Tribunal), effective from 21 May 2024.
However, section 7(12) of the Remuneration Tribunal Act 1973 in Australia provided (emphasis added): “Except as prescribed, a person is not entitled to be paid any remuneration in respect of his or her holding, or performing the duties of, a public office if the person holds a judicial office in the service of the government of a state or of a country other than Australia.”
In June 2024, the AAT informed the then senior member of its view that, due to section 7(12), she was not entitled to be paid any remuneration in respect of her holding, or performing the duties of, the office of senior member of the AAT from 21 May 2024 onwards. That was because, by reason of her appointment to the Upper Tribunal, she was “[a] person [who] holds a judicial office in the service of the government of … a country other than Australia”.
On 13 October 2024, when the AAT was abolished and replaced by the Administrative Review Tribunal, her appointment as a senior member of the AAT ceased.
The former senior member did not commence performing the duties of a deputy judge immediately. Between 4 and 6 December 2024, she undertook induction training at the Judicial College in London, and was remunerated by the government of the United Kingdom for her attendance at that training in accordance with the terms and conditions applicable to her appointment. On the morning of 23 January 2025, she took the oath of allegiance and the judicial oath. She first sat as a deputy judge of the Upper Tribunal later the same morning.
Arguments made to the Federal Court
On 31 October 2024, the former senior member (applicant) commenced proceedings in the Federal Court, seeking declaratory relief regarding the application of section 7(12) of the Remuneration Tribunal Act to her position between 21 May 2024 and 13 October 2024.
Although accepting that the office of deputy judge of the Upper Tribunal is a “judicial office” within the meaning of section 7(12), the applicant contended that, between 21 May 2024 and 13 October 2024, her entitlement to be paid her salary as a senior member of the AAT was unaffected by section 7(12), for the following three distinct grounds/reasons:
Court’s ruling in relation to ground 1 (whether an office was held overseas)
According to McDonald J at [34], the applicant’s argument was that:
“… although she was appointed as a deputy judge of the Upper Tribunal with effect from 21 May 2024, she did not ‘hold’ a judicial office from that date. She submits that her appointment was only a ‘first step’ in her becoming the holder of a judicial office. She submits that she did not hold judicial office from 21 May 2024 because ‘she was unable to sit as a deputy judge or exercise the powers and functions of that office’ until she had met other requirements.”
His Honour dismissed that argument as follows at [80] (original italics):
“… there is no necessary distinction between the date on which an ‘appointment’ to judicial office takes effect and the date on which the person comes to ‘hold’ a judicial office. I would not draw a distinction between appointment to an office commencing or becoming legally effective, on the one hand, and the person appointed coming to hold the office, on the other. It is quite natural to speak of the date of commencement of an appointment to a judicial office, and that natural use of language seems consistent with the view that a judicial office is ‘held’ from the point when such an appointment is expressed to come into effect.”
Court’s ruling in relation to ground 2 (whether limitation applies only to full-time office)
The applicant also argued that the reference to a person who “holds a judicial office” in s 7(12) should be construed as meaning only a person who holds judicial office on a full-time basis.
McDonald J dismissed that argument, ruling as follows at [127]:
“It is apparent from the terms of various provisions of the Remuneration Tribunal Act that it contemplates that ‘offices’ may be held on either a part-time or a full-time basis …”
Court’s ruling in relation to ground 3 (whether office held ‘in the service of’ the UK)
Further, the applicant argued that:
McDonald J dismissed that claim, ruling as follows at [135] (original italics):
“By far the more natural reading of the language of section 7(12) is that the expression ‘in the service of the government of a state or of a country other than Australia’ serves to identify the nature of the relevant ‘judicial office’ that the person must hold in order for s 7(12) to be engaged. That is, as the Commonwealth submits, the question presented by s 7(12) is whether the judicial office held by a person is a judicial office in the service of a state or a country other than Australia, not whether a particular person who holds a judicial office is in the service of a state or a country other than Australia. The office of deputy judge of the Upper Tribunal is an office in the service of the United Kingdom.”
As a result, the court dismissed the application for declaratory relief.
In other words, the former senior member did not obtain a declaration from the Federal Court that section 7(12) of the Remuneration Tribunal Act did not apply to her.
Sergio Zanotti Stagliorio is a barrister and lecturer in migration law.
