Family Court of Australia

In reply to the Hon. C. BONAROS (8 May 2018).

The Hon. R.I. LUCAS (Treasurer): I have been provided the following advice:

The appointment of Federal Circuit Court and Family Court judges, and the management of Federal and Family Court resources, are matters entirely for the federal Attorney-General.

The federal Attorney-General, as the first law officer of the commonwealth, is responsible to the Australian government for the recommendation of all judicial appointments to the Family Court of Australia, Federal Circuit Court of Australia, Federal Court of Australia and the High Court of Australia.

Section 22(1)(a) of the Family Law Act 1975 (Cth), section 6(1)(a) of the Federal Court of Australia Act 1976 (Cth), and Schedule 1 of the Federal Circuit Court of Australia Act 1999 (Cth) all state simply that a judge of any of those courts shall be appointed by the Governor-General. There is no requirement, nor allowance, for the state Attorneys-General to be involved in the process.

This is quite distinct from the High Court of Australia Act 1979 (Cth), section 6 of which requires that the federal Attorney-General must consult with the Attorneys-General of the states before an appointment to the High Court can be made.

Therefore, in my view, the state and territory Attorneys-General do not merely have no role to play in the appointment process to the Family and Federal Courts but, from a constitutional perspective, arguably should notinvolve themselves at all in any such appointment.

At most, a state Attorney-General may bring it to the attention of the federal Attorney-General that a state registry of a Federal, Federal Circuit or Family Court are under-resourced or understaffed. The federal Attorney-General in this case is already apprised of the issue.