Federal Court of Australia

Kirk v Commonwealth of Australia [2025] FCA 838

ORDERS

THE COURT ORDERS THAT:

1.    The applicant’s amended originating application dated 11 December 2024 be dismissed.

2.    The applicant pay the costs of the respondent, to be agreed or taxed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

MCDONALD J:

Introduction

1    On 31 March 2022, the applicant, Dr Linda Kirk, was appointed as a full-time senior member of the Administrative Appeals Tribunal (AAT) for a period of five years, commencing on 9 May 2022. She had previously been a part-time member of the AAT since about January 2017. Dr Kirk ceased to hold office as a senior member of the AAT when the AAT ceased to exist on 13 October 2024, prior to the establishment of the Administrative Review Tribunal with effect from 14 October 2024.

2    On 21 May 2024, Dr Kirk 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), with effect from 21 May 2024 until 24 May 2042. The office of deputy judge is a part-time fee-paid judicial office, and office holders are usually required to make themselves available to perform the duties of that office for a minimum of 30 days a year.

3    Dr Kirk did not immediately commence performing the duties of a deputy judge. 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, Dr Kirk took the oath of allegiance and the judicial oath. She first sat as a deputy judge of the Upper Tribunal later the same morning.

4    In June 2024, the AAT informed Dr Kirk of its view that, by reason of s 7(12) of the Remuneration Tribunal Act 1973 (Cth), 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 because, by reason of her appointment to the Upper Tribunal, Dr  Kirk had been “[a] person [who] holds a judicial office in the service of the Government of … a country other than Australia” since that date.

5    On 31 October 2024, Dr Kirk commenced the present proceedings in which she seeks declaratory relief regarding the application of s 7(12) of the Remuneration Tribunal Act to her position between 21 May 2024 and 13 October 2024. On 11 December 2024, she filed an amended originating application. Dr Kirk accepts that the office of deputy judge of the Upper Tribunal is a “judicial office” within the meaning of s 7(12). However, she contends that, between 21 May 2024 and 13 October 2024, her entitlement to be paid her salary as a senior member of the AAT in accordance with any relevant determination of the Remuneration Tribunal was unaffected by s 7(12). Dr Kirk contends that that is so for three distinct reasons, namely:

(a)    Dr Kirk did not become the holder of the office of deputy judge of the Upper Tribunal until a date after 13 October 2024;

(b)    on its proper construction, s 7(12) of the Remuneration Tribunal Act applies only in relation to a person who holds a judicial office on a full-time basis, and so has no application to Dr Kirk as a deputy judge of the Upper Tribunal on a part-time basis; and

(c)    s 7(12) of the Remuneration Tribunal Act did not apply to disentitle Dr Kirk to remuneration as a senior member of the AAT between 21 May 2024 and 13 October 2024 because she did not “enter into the service of the United Kingdom” in any capacity during that period.

6    For the reasons explained below I have concluded that:

(a)    Dr Kirk held the office of deputy judge of the Upper Tribunal from the date of her appointment, namely 21 May 2024;

(b)    on the proper construction of s 7(12) of the Remuneration Tribunal Act, the words “person holds a judicial office” refers to a person who holds a judicial office, whether on a full-time or part-time basis; and

(c)    the operation of s 7(12) depends on whether the office a person holds is a “judicial office in the service of” a State government or the government of a country other than Australia, and not on whether the person has entered into service or performed a service for such a government, and the office of deputy judge of the Upper Tribunal is a judicial office in the service of the United Kingdom.

7    It follows that, in the period from 21 May 2024 to 13 October 2024, Dr Kirk was not entitled to any remuneration in respect of her holding or exercising the duties of a senior member of the AAT by virtue of the operation of s 7(12) of the Remuneration Tribunal Act, except as provided by regulation. Dr Kirk is not entitled to the declaratory relief she seeks, and her originating application should be dismissed with costs.

Factual Background

8    The essential facts are agreed between the parties. The following summary of the factual background is largely based on the Statement of Agreed Facts. The Statement of Agreed Facts was supplemented by affidavit evidence of Dr Kirk, which was not challenged.

9    By letter dated 10 April 2024, sent to her by email, Dr Kirk was offered an appointment as a fee-paid deputy judge of the Upper Tribunal. The letter included the following:

Deputy Judge of the Upper Tribunal, Immigration and Asylum Chamber

I am pleased to tell you that the Senior President of Tribunals’ [sic] is willing to offer you an appointment as a Deputy Judge of the Upper Tribunal (Immigration and Asylum Chamber). You must be prepared to sit at Field House in London but may also be asked to sit in other venues as and when required.

All Deputy Judges of the Upper Tribunal are also, or if already appointed remain, Fee-paid Judges of the First-tier Tribunal and you may be deployed to undertake work there in suitable cases.

…

Data Protection

I can confirm that the Judicial Office (JO) holds personal data relating to you on behalf of the Lady Chief Justice. Your personal data is processed because you are a member of the Judiciary, and the JO holds judicial HR records. … If the JO is asked to confirm the names of serving judicial office-holders, then your name could be disclosed. This could happen, for example, as part of a response to a request made under the Freedom of Information Act. …

Lord Chancellor’s Terms and Conditions of Service

I enclose a copy of the generic Terms and Conditions of Appointment for all Fee-paid Tribunal members and ask that you please note the contents. However, I must mention that Office holders are usually required to make themselves available for a minimum of 15 days a year on tribunal business. This figure may be varied from time to time, in accordance with business needs either generally or for certain categories of office. Where a different sitting level is required, it will be specified in the recruitment material or otherwise notified. His Majesty’s Courts and Tribunals Service (HMCTS) will try to allocate sittings equally but cannot guarantee a minimum number of days in any year. A maximum number of days may be set where business needs dictate. You must be prepared to sit in London but may also be asked to sit in other locations.

You are appointed on a four-year term which may be renewed subject to the office holder’s agreement, unless a question of cause for non-renewal is raised, or you no longer satisfy the conditions or qualifications for appointment. Should your appointment be renewed for one or more further periods, your compulsory retirement date will be … 5/24/2042.

…

Training

Training will be provided. Successful candidates, after appointment, will have access to the Judicial College training prospectus. Successful candidates who are not already judicial office holders will be required to attend a judicial skills training course although an exact date and venue have yet to be confirmed.

…

Pension

As of 1st April 2022, the Judicial Pension Scheme 2022 (JPS 2022) is the only judicial pension scheme open to accrual. It is open to all eligible fee-paid and salaried judicial office holders, except where terms and conditions are specifically nonpensionable. …

The JPS 2022 is unregistered for tax purposes which means that pension benefits accrued in it will not count towards the Lifetime and Annual Allowances. Several of its features flow from this tax status, including the uniform contribution rate of 4.26%. The main features of JPS 2022 are a pension scheme design based on career average earnings with unreduced benefits payable from your State Pension Age and no service cap.

Alternatively, it is possible to opt out of JPS 2022 membership should you so wish to. …

Please note on accepting the appointment unless the Pensions team hear from you within 1 month of the date of this letter the default option of joining the JPS 2022 will be applied from your date of appointment and contributions will be deducted from salary/fees earned.

…

Next steps

I should be grateful if you would let me know no later than 24 April 2024 whether you wish to accept this offer of appointment. …

When written confirmation of your acceptance has been received, we will send a formal letter of appointment. Until then, the Lord Chancellor would be grateful if you would treat this letter as strictly confidential and, besides anyone involved with the appointment or training arrangements, only mention the matter to your family, Head of Chambers/Partners and your accountant.

(Emphasis in original.)

10    On 19 April 2024, Dr Kirk communicated her acceptance of the offer of appointment as a deputy judge of the Upper Tribunal. By letter dated 21 May 2024, sent to Dr Kirk by email, she was advised that the Senior President of Tribunals had appointed her as a deputy judge of the Upper Tribunal. The letter of 21 May 2024 included the following:

DEPUTY JUDGE OF THE UPPER TRIBUNAL, IMMIGRATION AND ASYLUM CHAMBER APPOINTMENT

Thank you for returning your completed proforma, in which you confirm that you accept the Senior President of Tribunal’s offer of appointment.

I am pleased to confirm that the Senior President of Tribunals has appointed you as a Deputy Judge of the Upper Tribunal, Immigration and Asylum Chamber which will take effect from 21 May 2024 and will run until … 5/24/2042, … .

Renewal at the end of each four-year period is automatic, unless a question of cause for non-renewal is raised or you no longer satisfy the conditions or qualifications for appointment.

We will not formally confirm any period of renewal, therefore you should assume that your appointment has been renewed unless you hear from us to the contrary.

It will be your personal responsibility not to accept any further sittings once your appointment has expired.

Please note that you will not be able to sit until you have completed all aspects of required training.

…

Navigating systems and finding the information you need in the early days of your appointment can be daunting. Judicial Office HR has therefore created a Welcome Page which can be accessed on the Judicial Intranet. The page provides new judicial office holders with quick and easy access to information and resources to assist you. [link to intranet welcome page]

(Emphasis in original.)

11    The terms and conditions of Dr Kirk’s appointment were partly provided for in legislation, relevant parts of which are set out below, partly in the letter of 21 May 2024, and partly in a document entitled “Memorandum on terms of appointment and conditions of service” (Memorandum). I will return to the terms of the Memorandum below.

12    On or about 19 June 2024, following the receipt of advice from the Australian Government Solicitor, the AAT formed the view that s 7(12) of the Remuneration Tribunal Act applied to Dr Kirk from 21 May 2024, such that she was not entitled to receive remuneration pursuant to s 7(9) of the Remuneration Tribunal Act from that date.

13    Between 4 and 6 December 2024, Dr Kirk undertook induction training at the Judicial College in London. In respect of those days, she received remuneration in accordance with the terms and conditions applicable to her appointment as a deputy judge of the Upper Tribunal.

Relevant Legislative Provisions

Australian legislation

14    In the relevant period when Dr Kirk was a member of the AAT, s 8 of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) provided:

8 Term of appointment

(3)     Subject to this Part, a member holds office for such period of at most 7 years as is specified in the instrument of appointment, but is eligible for re-appointment.

(4)    A member who is a Judge ceases to hold office as a member if he or she ceases to be a Judge.

(7)    Subject to this Part, a member holds office on such terms and conditions as are determined by the Minister in writing.

15    In relation to remuneration of members of the AAT, s 9 of the AAT Act provided for the payment of remuneration as determined by the Remuneration Tribunal established by s 4 of the Remuneration Tribunal Act. Section 9 of the AAT Act stated:

9 Remuneration and allowances

(1)    A member, other than a member who is a Judge, shall be paid such remuneration as is determined by the Remuneration Tribunal, but, if no determination of that remuneration by the Remuneration Tribunal is in operation, he or she shall be paid such remuneration as is prescribed.

(2)    A member to whom subsection (1) applies shall be paid such allowances as are prescribed.

(3)    Subsections (1) and (2) have effect subject to the Remuneration Tribunal Act 1973.

16    Part II of the Remuneration Tribunal Act is entitled “Remuneration etc for certain offices and appointments”. Section 3(4)(a) provides that, in Part II, a reference to a “public office” is a reference to, relevantly, “an office established by, or an appointment made under, a law of the Commonwealth”, other than the Remuneration Tribunal Act itself. The office of senior member of the AAT is such an office.

17    Division 2 of Part II, entitled “Determinations and reports by the Remuneration Tribunal”, consists of ss 4-12AA. Section 5(1) provides that one of the functions of the Remuneration Tribunal is to inquire into, and determine, matters referred to in s 7 (other than s 7(3D)). Most directly relevantly to the issues arising in these proceedings, s 7 provides:

7 Inquiries and determinations by Tribunal

(3)    The Tribunal shall, from time to time as provided by this Part, inquire into, and determine, the remuneration to be paid to the holders of public offices other than holders of those offices who are members of, or candidates for election to, either House of the Parliament.

…

(9)    Remuneration (including salary) or allowances to which a subsisting determination applies shall, notwithstanding the provisions of any other law of the Commonwealth, of any law of a State or Territory, of any instrument having effect by virtue of such a law or of any contract, but subject to the succeeding provisions of this section:

…

(b)    in any other case—be paid in accordance with the determination out of the Consolidated Revenue Fund.

…

(11)    Except as prescribed, or as authorized or approved by or under any other law of the Commonwealth or any law of a Territory, 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 on a part-time basis if the person holds any office or appointment, or is otherwise employed, on a full-time basis in the service or employment of the Commonwealth, the Administration of a Territory, a public statutory corporation, an incorporated company referred to in paragraph 3(4)(da) or an incorporated company all of the stock or shares in the capital of which is or are beneficially owned by the Commonwealth or by a public statutory corporation.

(12)    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.

…

18    I note that s 7 of the Remuneration Tribunal Act has been amended since it was first enacted. As originally enacted in 1973, the Remuneration Tribunal Act did not include s 7(12). That subsection was inserted in 1974 by s 9(c) of the Remuneration Tribunals Act 1974 (Cth).

19    An inclusive definition of “office” appears in s 3(1) of the Remuneration Tribunal Act, as follows:

office includes position.

20    There is no specific definition of “judicial office”, and the only place the expression “judicial office” is used in the Remuneration Tribunal Act is in s 7(12) itself.

United Kingdom legislation

21    The parties have agreed that the following provisions of the statute law of the United Kingdom are relevant to the issues arising in the proceedings.

22    There is no dispute between the parties that the office of deputy judge of the Upper Tribunal is an office, nor that it is a “judicial office” within the meaning of s 7(12) of the Remuneration Tribunal Act. This is consistent with s 109(4) of the Constitutional Reform Act 2005 (UK), which contains a definition of “judicial office”, albeit that the definition is only expressed to be for the purpose of that section. The definition in s 109(4) is as follows:

109 Disciplinary powers: interpretation

…

(4)    “Judicial office” means—

(a)    office as a senior judge, or

(b)    an office listed in Schedule 14;

    and “judicial office holder” means the holder of a judicial office.

23    Part 3 of Schedule 14 of the Constitutional Reform Act is titled “Tribunal-related and other appointments”. It provides a table setting out offices to which appointments may be made by the Senior President of Tribunals. Insofar as it is presently relevant, the table includes the following:

24    Section 3(2) of the Tribunals, Courts and Enforcement Act 2007 (UK) establishes the Upper Tribunal. In full, s 3 provides:

3 The First-tier Tribunal and the Upper Tribunal

(1)    There is to be a tribunal, known as the First-tier Tribunal, for the purpose of exercising the functions conferred on it under or by virtue of this Act or any other Act.

(2)    There is to be a tribunal, known as the Upper Tribunal, for the purpose of exercising the functions conferred on it under or by virtue of this Act or any other Act.

(3)    Each of the First-tier Tribunal, and the Upper Tribunal, is to consist of its judges and other members.

(4)    The Senior President of Tribunals is to preside over both of the First-tier Tribunal and the Upper Tribunal.

(5)    The Upper Tribunal is to be a superior court of record.

25    Section 5 of the Tribunals, Courts and Enforcement Act makes provisions for the judges and other members of the Upper Tribunal. Most relevantly to the issues in these proceedings, it states:

5 Judges and other members of the Upper Tribunal

(1)    A person is a judge of the Upper Tribunal if the person—

(a)    is the Senior President of Tribunals,

(b)    is a judge of the Upper Tribunal by virtue of appointment under paragraph 1(1) of Schedule 3,

(c)    is a transferred-in judge of the Upper Tribunal (see section 31(2)),

…

(h)    is a deputy judge of the Upper Tribunal (whether under paragraph 7 of Schedule 3 or under section 31(2)), or

…

(3)    Schedule 3—

    contains provision for the appointment of persons to be judges (including deputy judges), or other members, of the Upper Tribunal, and

    makes further provision in connection with judges and other members of the Upper Tribunal.

26    Schedule 3 to the Tribunals, Courts and Enforcement Act is titled “Judges and other members of the Upper Tribunal”. Paragraph 1 of Schedule 3 provides as follows:

Power to appoint judges of Upper Tribunal

(1)    Her Majesty, on the recommendation of the Lord Chancellor, may appoint a person to be one of the judges of the Upper Tribunal.

(2)    A person is eligible for appointment under sub-paragraph (1) only if the person—

(a)    satisfies the judicial-appointment eligibility condition on a 7-year basis,

(b)    is an advocate or solicitor in Scotland of at least seven years’ standing,

(c)    is a barrister or solicitor in Northern Ireland of at least seven years’ standing, or

(d)    in the opinion of the Senior President of Tribunals, has gained experience in law which makes the person as suitable for appointment as if the person satisfied any of paragraphs (a) to (c).

(3)    Section 52(2) to (5) (meaning of “gain experience in law”) apply for the purposes of subparagraph (2)(d), but as if section 52(4)(i) referred to the Senior President of Tribunals instead of to the relevant decision-maker.

27    Paragraph 7 of Schedule 3 to the Tribunals, Courts and Enforcement Act provides for the appointment of deputy judges of the Upper Tribunal by the Senior President of Tribunals, as follows:

Deputy judges of the Upper Tribunal

(1)    The Senior President of Tribunals may appoint a person to be a deputy judge of the Upper Tribunal for such period as the Lord Chancellor considers appropriate.

(2)    A person is eligible for appointment under sub-paragraph (1) only if he is eligible to be appointed under paragraph 1(1) (see paragraph 1(2)).

(3)    The following provisions of this paragraph apply—

(a)    to a person appointed under sub-paragraph (1), and

(b)    to a person who becomes a deputy judge of the Upper Tribunal as a result of provision under section 31(2).

…

(4)    Subject to the previous provisions of this paragraph (but subject in the first place to the Judicial Pensions and Retirement Act 1993), a person is to hold and vacate office as a deputy judge of the Upper Tribunal in accordance with the person's terms of appointment, which are to be such as the Lord Chancellor may determine.

(5)    The Lord Chancellor may pay to a person to whom this sub-paragraph applies such amounts (if any) as the Lord Chancellor may determine by way of—

(a)    remuneration;

(b)    allowances;

(c)    expenses.

28    Dr Kirk’s appointment as a deputy judge of the Upper Tribunal was made by the Senior President of Tribunals pursuant to paragraph 7(1) of Schedule 3.

29    Paragraph 10 of Schedule 3 to the Tribunals, Courts and Enforcement Act provides for the taking of oaths by persons appointed as judges of the Upper Tribunal, including deputy judges:

Oaths

(1)    Sub-paragraph (2) applies to a person (“J”)—

(a)    who is appointed under paragraph 1(1), 2(1) or 7(1), or

(b)    who—

(i)    becomes a transferred-in judge, or a transferred-in other member, of the Upper Tribunal, or

(ii)    becomes a deputy judge of the Upper Tribunal as a result of provision under section 31(2),

and has not previously taken the required oaths after accepting another office.

(2)    J must take the required oaths before—

(a)    the Senior President of Tribunals, or

(b)    an eligible person who is nominated by the Senior President of Tribunals for the purpose of taking the oaths from J.

(3)    A person is eligible for the purposes of sub-paragraph (2)(b) if any one or more of the following paragraphs applies to him—

(a)    he holds high judicial office (as defined in section 60(2) of the Constitutional Reform Act 2005 (c 4));

(b)    he holds judicial office (as defined in section 109(4) of that Act);

(c)    he holds (in Scotland) the office of sheriff.

(4)    In this paragraph “the required oaths” means (subject to sub-paragraph (5))—

(a)    the oath of allegiance, and

(b)    the judicial oath,

as set out in the Promissory Oaths Act 1868 (c 72).

…

30    The forms of the oath of allegiance and the judicial oath are set out in ss 2 and 4, respectively, of the Promissory Oaths Act 1868 (UK).

31    Section 7 of the Promissory Oaths Act was also relied upon by the Commonwealth as a contextually relevant provision. It provides:

7 Penalty on not taking required oath

If any officer specified in the schedule hereto or any member of the Scottish Executive declines or neglects, when any oath required to be taken by him under this Act or section 84(4) of the Scotland Act 1998 is duly tendered, to take such oath, he shall, if he has already entered on his office, vacate the same, and if he has not entered on the same be disqualified from entering on the same; but no person shall be compelled, in respect of the same appointment to the same office, to take such oath more times than one.

32    It should be noted that the office of deputy judge of the Upper Tribunal is not one of the offices specified in the schedule to the Promissory Oaths Act.

Issue 1: Did Dr Kirk hold judicial office from the date of her appointment on 21 May 2024 or from a later date?

The competing submissions

33    The ultimate question presented by the first issue joined between the parties is whether Dr Kirk held the judicial office of deputy judge of the Upper Tribunal from the date when her appointment as a deputy judge was expressed to take effect or only from a later date, after further steps that were required before she was able to sit as a judicial officer had been completed.

34    Dr Kirk submits that s 7(12) of the Remuneration Tribunal Act does not disentitle a person to be paid remuneration from the date on which they are appointed as a judicial officer of a State or a country other than Australia. Rather, Dr Kirk submits, a person is only disentitled to be paid remuneration if they hold a judicial office in the service of a State or foreign Government. Dr Kirk contends 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.

35    In particular, Dr Kirk submits that she could not be said to have held a judicial office until she had:

(a)    obtained a visa permitting her to travel to the United Kingdom to attend induction training at the judicial college;

(b)    undertaken the induction training at the judicial college; and

(c)    taken the oaths required by paragraph 10(2) of Schedule 3 to the Tribunals, Courts and Enforcement Act.

36    The last of these requirements to be met in Dr Kirk’s case was the taking of the oath of allegiance and judicial oath, which she did not do until 23 January 2025.

37    Dr Kirk submits that I should determine this issue by considering the ordinary meaning or common understanding of the expression “holds a judicial office”, as it is used in Australia. She refers to the judgment of Kitto J in NSW Associated Blue-Metal Quarries Ltd v Federal Commissioner of Taxation (1955) 94 CLR 509 at 512-13 and the High Court in Comptroller-General of Customs v Pharm-A-Care Laboratories Pty Ltd (2020) 270 CLR 494; [2020] HCA 2 at 514 [45] as exemplifying the approach to the determination and application of the common understanding of a statutory expression. Dr Kirk submits that, having regard to what she contends is the ordinary meaning of the expression “holds a judicial office”, it should be concluded that a person only comes to hold a judicial office, within the meaning of s 7(12) of the Remuneration Tribunal Act, once all of the steps which are necessary to entitle the person to sit as a judicial officer have been completed. Dr Kirk’s submission is that “if there is a process that has to be gone through to become a judge, then it all has to happen before the person will be the holder of a judicial office”.

38    In contrast, the Commonwealth submits that, because s 7(12) of the Remuneration Tribunal Act is concerned with the holding of judicial office under the law of a State or of a country other than Australia, s 7(12) should be construed so as to operate flexibly and the question of whether a person holds a judicial office should be determined primarily by reference to the law of the State or the foreign country concerned. The Commonwealth submits that the ordinary and natural meaning of the expression “holds judicial office” supports the conclusion that a person who is appointed to judicial office “holds” that office from the date when their appointment takes effect.

39    Neither party identified any relevant authority, whether in Australia or in the United Kingdom, which determined the point in time at which a person who is appointed to a judicial office (or another kind of office) comes to “hold” that office.

The interpretation and application of s 7(12) of the Remuneration Tribunal Act

General approach to interpretation

40    The interpretation and application of s 7(12) of the Remuneration Tribunal Act must begin with the text of that provision, read in its full context and in light of its purpose: see generally, eg, SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362; [2017] HCA 34 at 368 [14]; SAS Trustee Corporation v Miles (2018) 265 CLR 137; [2018] HCA 55 at 149 [20], 157 [41]; CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408.

41    In Federal Commissioner of Taxation v Jayasinghe (2017) 260 CLR 400; [2017] HCA 26 (Jayasinghe), the High Court considered the meaning and application of the expression “a person who holds an office in an international organisation” as it appeared in s 6(1)(d)(i) of the International Organisations (Privileges and Immunities) Act 1963 (Cth) (IOPI Act). It was emphasised that the meaning of the word “office” would turn largely on the context in which it is found: Jayasinghe at 412 [31] (Kiefel CJ, Keane, Gordon and Edelman JJ), 422 [62] (Gageler J). In the context of the IOPI Act, it was necessary to have regard to the fact that the provisions of that Act would apply to potential relationships between persons and a wide variety of international organisations: Jayasinghe at 413 [36] (Kiefel CJ, Keane, Gordon and Edelman JJ).

42    The issue of construction that arises in the present case does not involve the meaning of the word “office” as such, but it relates to the question of whether the description “holds a judicial office”, as it is used in s 7(12) of the Remuneration Tribunal Act, extends to a person who has been appointed to an office and whose appointment has “commenced”, but who has not yet taken all steps necessary to allow them to exercise the duties of the office. Nevertheless, the context in which the expression “holds a judicial office” appears in s 7(12) of the Remuneration Tribunal Act must inform its application.

Section 7(12) and its purpose in the context of the Remuneration Tribunal Act

43    A significant purpose of the Remuneration Tribunal Act is to establish a Commonwealth Remuneration Tribunal tasked with, among other things, inquiring into and determining the remuneration and allowances to be paid to the holders of Commonwealth public offices. The Remuneration Tribunal has substantial independence from the political executive government; that is reflected in the fixed terms of its members (s 4) and the limited grounds on which they may be removed (s 9).

44    The functions of the Remuneration Tribunal are set out in s 5. They include the function of inquiring into and determining the matters set out in s 7. Section 7(3) empowers and requires the Tribunal to inquire into and determine the remuneration to be paid to Commonwealth public officers, including, relevantly, senior members of the AAT.

45    Section 7(9) is an important operative provision which establishes the requirement that remuneration or allowances to which a subsisting determination of the Remuneration Tribunal applies be paid in accordance with that determination. In the case of offices that are not otherwise addressed by paragraphs (a)-(ad) of s 7(9), which includes senior members of the AAT, such remuneration or allowances are to be paid out of the Consolidated Revenue Fund of the Commonwealth.

46    Section 7(9) is expressed to operate notwithstanding any other law of the Commonwealth, but subject to the succeeding provisions of s 7 itself.

47    Section 7(12) is one of the “succeeding provisions” to which the requirement that remuneration and allowances be paid in accordance with a determination of the Remuneration Tribunal is subjected. Section 7(12) does not necessarily have the effect that a person to whom it applies is not entitled to any remuneration in respect of holding of performing the duties of their office. Having regard to the opening words, “[e]xcept as prescribed”, the effect of s 7(12), in cases to which it applies, is to remove the remuneration to be paid to an office holder from the control of the Remuneration Tribunal, through its determinations, and to place it under the control of the executive government (that control being exercisable through the making of regulations). The power to make regulations itself is found in s 17.

48    I accept the submission of the Commonwealth that a purpose of s 7(9) and (12) is to allocate decisional responsibility by committing to the Remuneration Tribunal the function of determining remuneration for a wide range of statutory office holders, but “carving out” certain classes of cases from that scheme and committing responsibility for those cases to the executive government. The remuneration of office holders who also hold a judicial office in the service of a State or of a country other than Australia is apt to give rise to different, and potentially more complex, political and policy considerations than the remuneration of other Commonwealth office holders. Those considerations may include matters of intergovernmental relationships between the Commonwealth and the States or between the Commonwealth and other nations.

49    One submission advanced by Dr Kirk in writing posits that the purpose of s 7(12) must be to avoid “double dipping”; that is, to avoid a situation where a person who holds both an Australian office and a foreign judicial office receives two lots of remuneration. While that is a consideration to which the executive might have regard in the way it chooses to exercise (or not to exercise) the regulation-making power, I do not accept that the avoidance of the double payment of remuneration to persons who hold a State or foreign judicial office should be treated as the purpose of s 7(12) itself in such a way as to allow that purpose to control or confine the interpretation or operation of s 7(12).

Section 7(12) directs attention primarily to the content of foreign law

50    The construction of s 7(12) must proceed on the basis of a recognition that the reference to “a judicial office” is a reference to a class of public offices provided for under the laws of the States and of countries other than Australia. Section 7(12) has to be capable of application to a wide range of potential circumstances and in relation to offices under a wide range of different legal systems. This suggests that s 7(12) should not be understood to contemplate an unduly restrictive or technical conception of an “office”, or of what it means to “hold” an office.

51    The Remuneration Tribunal Act contains some provisions that are capable, indirectly, of shedding some light on what the Act contemplates when it speaks of “holding” an office. First, the terms of s 7(12) itself recognise that the concept of holding an office is, or at least may be, distinct from performing the duties of an office. Secondly, various provisions of the Remuneration Tribunal Act use the expression “hold an appointment”, which suggests that “hold” is being used in the Act in a sense that is synonymous with a person’s having been appointed: ss 3(5), 7(9)(a), (acaa), (aca), (acaaaa) and (acb), and (11). Thirdly, as noted at [19] above, “office” is defined for the purpose of the Remuneration Tribunal Act to include “position”; this is consistent with the idea that a person should be understood to hold an office from the point in time at which their appointment to a position takes effect.

52    Further, s 3(4) defines the concept of a “public office” for the purposes of the Remuneration Tribunal Act in terms that recognise that a public office may include “an office” or “an appointment”. This is not itself conclusive of what it means to hold an “office”, or the point in time at which a person commences to hold an office, but it at least suggests that the Remuneration Tribunal Act was drafted on the understanding that it was not unnatural to speak of the fact of a person’s “appointment” being synonymous with, or giving rise to, the holding of an office.

53    These considerations provide some, albeit relatively slight, indication that the Remuneration Tribunal Act contemplates that commencing to “hold” an office is, or at least may be, synonymous with having been appointed to that office (or with being appointed to a position).

54    More importantly, the fact that s 7(12) is concerned with offices provided for under the laws of a State or of a foreign country suggests that the primary focus, in determining whether a person holds a foreign judicial office at a particular point in time, should be on whether the person has come to hold a judicial office according to the relevant law of the State or foreign country.

55    The reference to a person who “holds a judicial office in the service of the Government of … a country other than Australia” is necessarily concerned with a status that a person has under the law of another country. In that respect, it has some similarities to the expression “a subject or a citizen of a foreign power” used in s 44(i) of the Constitution, which was considered by the High Court in Re Canavan (2017) 263 CLR 284; [2017] HCA 45. Under the heading “Subject or citizen – the role of foreign law”, the High Court said (at 304-5 [37]):

Whether a person has the status of a subject or a citizen of a foreign power necessarily depends upon the law of the foreign power. That is so because it is only the law of the foreign power that can be the source of the status of citizenship or of the rights and duties involved in that status. In Sykes v Cleary, Mason CJ, Toohey and McHugh JJ said that “[a]t common law, the question of whether a person is a citizen or national of a particular foreign State is determined according to the law of that foreign State” [(1992) 176 CLR 77 at 105-6], the common law rule being, in part, a recognition of the principle of international law that “it is for every sovereign State ... to settle by its own legislation the rules relating to the acquisition of its nationality” [Nottebohm Case (Liechtenstein v Guatemala) (Second Phase) [1955] ICJ Rep 4 at 20]. Statements to similar effect were also made in Sykes v Cleary by Brennan, Deane, Dawson and Gaudron JJ respectively [(1992) 176 CLR 77 at 109-12, 127-8, 131, 135].

56    The first observation in this passage – that “it is only the law of the foreign power that can be the source of the status of citizenship or of the rights and duties involved in that status” – is equally applicable to the status of a person who “holds a judicial office” in the service of a country other than Australia. And, while it is not apt to speak of a “rule” of the common law or of international law regarding the law to be applied in determining whether a person holds a judicial office, it cannot really be doubted that it is for each State or country to settle, by its own domestic law, the rules relating to the acquisition of judicial office in the service of the government of that State or country.

57    That is not to say that the application of the expression “holds a judicial office” in s 7(12) of the Remuneration Tribunal Act is controlled solely by foreign law. There must be some “minimum” or “core” content to the concept that is used in s 7(12) of the Remuneration Tribunal Act. This is consistent with the statement of Kiefel CJ, Keane, Gordon and Edelman JJ in Jayasinghe (at 414 [37]) that the phrase “a person who holds an office in an international organisation” in s 6(1)(d)(i) of the IOPI Act was focused “on the substance of the terms upon which a person is engaged – not whether the relevant organisation has attributed a particular label to the engagement – and on the relationship between that engagement and the organisation’s performance of its functions”.

58    So, for example, if a person were appointed to an office that did not carry with it any of the incidents or duties of a kind normally associated with judicial office, that person might not “hold a judicial office” for the purpose of s 7(12) of the Remuneration Tribunal Act, even if the foreign law itself anomalously attached the label “judicial office” to that office. That situation might be considered analogous to that of Senator Nick Xenophon, which was considered in Re Canavan at 326-9 [124]-[135]. Senator Xenophon held a particular status under the law of the United Kingdom – the status of a “British Overseas Citizen”. The High Court held that the fact that he had that status under the law of the United Kingdom did not result in his being “a subject or a citizen of a foreign power” within the meaning of s 44 of the Constitution because that status did not confer the rights or privileges of a citizen as that term is generally understood. That kind of issue does not arise in the present case: the parties agree and accept that the office of deputy judge of the Upper Tribunal is a “judicial office”.

59    Under s 44(i) of the Constitution, a question may also arise as to the point in time at which a person has ceased to be a subject or a citizen of a foreign power. That is a question that is analogous to the question of the point in time at which Dr Kirk came to hold the judicial office of deputy judge of the Upper Tribunal. Where that question arises under s 44(i), it is answered primarily by reference to the law of the relevant foreign country. In Re Gallagher (2018) 263 CLR 460; [2018] HCA 17, Kiefel CJ, Bell, Keane, Nettle and Gordon JJ explained (at 468 [9]):

Whether a person is a foreign citizen to whom s 44(i) applies is necessarily determined by reference to the law of the relevant country because it is only that law which can be the source of the status of citizenship or the rights and duties involved in that status. And it is the law of that country which may enable a person to renounce his or her citizenship so that he or she may be freed from the disqualifying effect of s 44(i).

(Footnotes omitted.)

60    Thus, in Sykes v Cleary (1992) 176 CLR 77, the Court considered whether the second and third respondents, Mr Delacretaz and Mr Kardamitsis respectively, were disqualified by s 44(i) of the Constitution, by reference to the requirements of the law of Switzerland (in the case of Mr Delacretaz) and by reference to the requirements of the law of Greece (in the case of Mr Kardamitsis): at 108, 114, 132.

61    The principle that one must look to the law of the relevant country to determine whether a person has renounced their citizenship of that country is subject to the “implicit qualification in s 44(i) that the foreign law conferring foreign citizenship must be consistent with the constitutional imperative underlying that provision, namely, that an Australian citizen not be prevented by foreign law from participation in representative government where it can be demonstrated that the person has taken all steps that are reasonably required by the foreign law to renounce his or her foreign citizenship”: Re Canavan at 297 [13]; Re Gallagher at 468 [8].

62    Where the analogous question arises under s 7(12) of the Remuneration Tribunal Act – does a particular public officer, at a particular point in time, “hold a judicial office in the service of … a country other than Australia”? – the question is, again, to be answered primarily by asking whether the person has the status of a person who holds a judicial office, according to the relevant law under which they were appointed to that judicial office.

63    The concept of “holding” a judicial office, as referred to in s 7(12), may set some outer limits, such that the idiosyncratic effects of “exorbitant foreign laws” might not result in a person holding a foreign judicial office for the purpose of s 7(12): cf Re Gallagher at 480-1 [54] (Gageler J). However, the Remuneration Tribunal Act should not be interpreted as imposing any particular technical or restrictive concept of what it means to “hold” a judicial office. In particular, having regard to the features of the Act discussed above, s 7(12) of the Remuneration Tribunal Act, in referring the concept of holding a judicial office, should not be understood as using that expression in a way that precludes a conclusion that a particular person has come to hold a judicial office upon (and merely by reason of) their appointment as a judge “taking effect”.

64    In her article, “Oaths and Affirmations of Public Office” (1999) 25(1) Monash University Law Review 132, at pp 133-7, Professor Enid Campbell traced the evolution of English law relating to the taking of oaths in the 18th and 19th centuries. Professor Campbell’s survey of early English legislation reveals that, before 19th century reforms, in the case of many (though not all) offices, a person could not “enter upon their office” without first swearing the prescribed oaths and making the prescribed declarations. These included oaths acknowledging the duties of the particular office, an oath of allegiance to the monarch, an oath of supremacy, an oath of abjuration, and various oaths or declarations that imposed religious tests. The enactment of the Promissory Oaths Act (one provision of which is discussed at [94] below) was an important step in these reforms in the United Kingdom, and its terms were reflected in legislation enacted in some Australian jurisdictions.

65    Professor Campbell’s statement (at p 132) that, “[t]raditionally, many persons appointed or elected to public office have been required by law to take some oath or affirmation before or shortly after they enter upon the office” reflects the fact that, historically, requirements that office holders take oaths have been imposed by statute; there has been no universal legal rule that a person appointed to an office could not hold the office until any further conditions, which would entitle them to “sit” or to perform the functions or duties of the office, was met. Both in the United Kingdom and in Australia, the question of when a person who is appointed to an office created by statute comes to “hold” the office must be determined as matter of interpretation of the relevant legislation and, where appropriate, any other relevant instruments relating to the office and the appointment.

66    These considerations all support the conclusion that s 7(12) of the Remuneration Tribunal Act should not be understood as requiring the adoption of any narrow or technical view of the point in time at which a person comes to “hold” a judicial office, as a matter of the interpretation of s 7(12) of the Remuneration Tribunal Act. At least where the relevant foreign country is one whose legal system is as similar to Australia’s as the United Kingdom’s, s 7(12) must be understood as directing attention to the question of whether, at the relevant point in time, the office holder in question holds a judicial office according to the law of that foreign country. Whatever ultimate limits might apply, the concept of holding a judicial office relevant to s 7(12) is sufficiently flexible to accommodate foreign law which provides (whether expressly or by implication) that a person appointed to a judicial office holds that office from the date on which the appointment is expressed to come into effect, or which provides that such a person shall only hold the office after the satisfaction of some further condition or range of conditions.

67    In Dr Kirk’s case, therefore, I consider that the relevant question presented by s 7(12) is whether, as at 21 May 2024, Dr Kirk held the office of deputy judge of the Upper Tribunal by reference to the law of the United Kingdom.

Foreign law

68    Before considering the facts and evidence relevant to ascertaining the point in time at which Dr Kirk came to “hold a judicial office” in the service of the government of the United Kingdom, something more should be said briefly about the ascertainment of the content and application of the law of the United Kingdom as relevant to the present case.

69    The content of foreign law and the manner in which foreign law would apply in particular factual circumstances are questions of fact. As such, they may be the subject of agreement between the parties. They should otherwise ordinarily be proved by evidence adduced by the parties. The evidence by which questions as to the content and application of foreign law may be proved may, and often will, include expert evidence: Neilson v Overseas Projects Corporation of Victoria Ltd (2005) 223 CLR 331; [2005] HCA 54 (Neilson) at 370 [115] (Gummow and Hayne JJ). However, that need not always be the case: see, eg, Evidence Act 1995 (Cth), s 174. If the evidence of foreign law is incomplete, it is necessary for the Court to decide the issues raised by the parties by reference to the evidence presented by the parties: Neilson at 338 [1] (Gleeson CJ).

70    In this case, Dr Kirk has not adduced any expert opinion evidence as to the position under the law of the United Kingdom regarding the point in time at which, according to the law of the United Kingdom, a person who is appointed as a deputy judge of the Upper Tribunal is taken to have held that office. That is perhaps a reflection of the fact that the way Dr Kirk advanced her case placed emphasis on what she contended was the ordinary meaning of holding a judicial office in Australia.

71    The Commonwealth has adduced evidence of correspondence between the parties which demonstrates that the Commonwealth raised the issue of proof of foreign law with Dr Kirk, and proposed that the parties might jointly brief an expert to answer questions to be agreed upon by the parties. Dr Kirk did not take up that invitation and consequently there is no expert evidence before the Court about the relevant content or operation of the law of the United Kingdom. The Commonwealth relies on Dr Kirk’s election not to obtain such expert evidence in support of a submission to the effect that the Court should not apply the presumption that the law of the United Kingdom is the same as the law of Australia in a manner that would assist Dr Kirk or fill what would otherwise be a gap in her case: see BP Exploration Co (Libya) Ltd v Hunt [1980] 1 NSWLR 496 at 503.

72    Given that there is no expert evidence before the Court, in this case it is necessary to decide any issues concerning the content of the law of the United Kingdom principally by reference to the Statement of Agreed Facts. It is agreed that the laws of the United Kingdom relating to the Upper Tribunal and persons appointed to the office of deputy judge of the Upper Tribunal include the Tribunals, Courts and Enforcement Act, the Constitutional Reform Act and the Promissory Oaths Act. It is also an agreed fact that each of these statutes was in the same form throughout 2024. Copies of the statutes themselves are included as annexures to the Statement of Agreed Facts. The existence of those statutes and their text can, therefore, be taken as having been proved in the proceedings, just as if they had been the subject of proof by adducing expert evidence.

73    The general approach to the construction and operation of statute law in the United Kingdom is a matter about which it is appropriate to apply the presumption that the law of the United Kingdom does not differ from the law of Australia. That is to say, it seems to me appropriate in this case to apply the presumption that foreign law reflects domestic law at, but only at, a relatively high level: an Australian court may proceed on the assumption that it is appropriate to approach a question of the interpretation or application of United Kingdom legislative provisions in essentially the same way that a court would approach the interpretation and application of those provisions if they were found in Australian legislation.

74    I therefore proceed on the basis that the legal system of the United Kingdom is similar to that of Australia in that its statute law is enacted and interpreted having regard to ordinary conventions about the use of language and the interpretation of utterances, and against the backdrop of certain rules and presumptions of statutory interpretation that derive from both the common law and statute, and which may be ascertained having regard to other appropriate legal sources such as interpretation legislation, case law, and texts on statutory interpretation. I proceed on the basis that the law to be applied to determine the question of whether Dr Kirk held a judicial office from 21 May 2024 or from a later date is to be ascertained by me as best as I can having regard to legislative provisions that are in evidence, construed on the assumption that the approach to statutory construction applicable in the United Kingdom is not fundamentally different to the approach to statutory construction that applies in Australia.

75    I also consider that it is appropriate to have regard to historical developments in the law of the United Kingdom relating to appointment to office and the taking of oaths, insofar as they might relevantly bear on the interpretation of legislation of the United Kingdom. I have made brief reference to that history at [64] above. Since that history could be contextually relevant to the question of when a person appointed as a judge in Australia should be understood to have commenced to “hold a judicial office”, it would seem artificial for an Australian court to exclude it from consideration of the equivalent question in relation to a judicial office established by legislation of the United Kingdom.

76    Ultimately, in this case, I doubt anything turns on the limits of the presumption that the principles applicable to the interpretation and application of legislation in the United Kingdom are the same as those that apply in Australia. Those general principles are well known to Australian courts and it is of little moment whether they are to be applied because judicial notice may be taken of them or because, in the absence of evidence, they are presumed to be the same in the United Kingdom as in Australia.

77    What would not be appropriate in this case would be to apply the presumption that foreign law is the same as domestic law in a more direct way, by attempting to ascertain whether, under particular Australian legislation, or under Australian legislation generally, a person appointed to judicial office in Australia generally would be taken to hold that office from the date on which their appointment was expressed to take effect or from some later date, and then presuming that the answer to that question is the same under the law of the United Kingdom in relation to the office of deputy judge of the Upper Tribunal. However, even if that were the correct approach to apply, for the reasons explained at [111]-[122] below, I would in any event conclude that Dr Kirk held a judicial office from 21 May 2024.

The “ordinary meaning” of holding a judicial office

78    Both parties submit that their own position as to when Dr Kirk came to hold the office of deputy judge of the Upper Tribunal is consistent with the “ordinary meaning” or commonly used sense of when a person comes to hold a judicial office. Dr Kirk contends that the issue that arises involves the construction and operation of Australian legislation – s 7(12) of the Remuneration Tribunal Act – and that effect should be given to what she contends is the “ordinary meaning” of the phrase “hold a judicial office” in Australia. She contends that, applying that ordinary meaning, she did not hold a judicial office at any time prior to 13 October 2024. The Commonwealth accepts that the “ordinary meaning” is one consideration to be taken into account in deciding when Dr Kirk held a judicial office, and that the ordinary meaning is consistent with the Commonwealth’s contention that Dr Kirk held office from the date on which her appointment was expressed to commence.

79    While I accept that the concept of holding a judicial office is one that is generally or commonly understood, and so can be said to have an ordinary or common meaning, it is not obvious to me that the question of when, exactly, a person who is appointed to a judicial office is to be regarded as “holding” that office is really part of the meaning of the concept. For many people, their conception of what it means to hold judicial office may not include any particular view as to the precise point in time at which a person comes to “hold” a judicial office. It seems doubtful that consideration of the meaning of the expression “holds a judicial office”, as generally understood, is itself capable of answering the question of whether a person “holds” judicial office from the date specified as the date of the commencement of the appointment, or the date on which they complete the taking of any necessary oath or affirmation, or the date of completion of any other step that is legally or practically necessary before the person is able to sit as a judicial officer or otherwise exercise the duties of their judicial office.

80    While I can imagine that a survey of people acquainted with the idea of holding judicial office might well yield competing views on the issue, my own sense is that 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.

81    Any “ordinary meaning” of the concept of holding a judicial office might relevantly bear on the interpretation of s 7(12) of the Remuneration Tribunal Act itself and on the interpretation and application of foreign legislation to which s 7(12) directs attention. I am not in a position to distinguish between my sense of the “ordinary meaning” of the concept of “hold[ing] a judicial office” in Australia and any possible different sense relevant to judicial offices in the United Kingdom. Indeed, the law relating to the holding of public offices in Australia is informed by historical events in the United Kingdom.

82    Insofar as it is necessary for me to express a view based on my sense of the “ordinary meaning” of the concept of “hold[ing] a judicial office”, I would conclude that, where a person is appointed to judicial office by a commission or letter or other instrument of appointment, the person holds the judicial office on and from the date that is specified in the relevant instrument as the date on which the appointment is to commence or take effect. (And, in a case where the commission or instrument of appointment did not identify a date on which the appointment is to take effect, I would consider that the person held a judicial office from the date on which the instrument was executed.) In my view, it is natural to treat a statement that an appointment to an office is to commence on a particular day as meaning that the person is to hold the judicial office to which they are appointed with effect from that day.

83    The holding of an office is distinct from the performance of the duties of that office. I do not perceive any particular difficulty in accepting that there may be circumstances in which a person who holds a judicial office may not, or may not yet, be lawfully permitted to perform some, or even all, of the functions or duties of that office. Further, it might be thought that requirements such as taking an oath, or undertaking relevant training, can fairly be characterised as incidents of holding the office, or duties of the office, rather than necessary preconditions to holding the office. That said, if there were clear textual or contextual considerations arising from the relevant United Kingdom legislation that indicated that, under that legislation, a person could not be considered to hold a judicial office until particular further conditions were satisfied, I would not allow my impression of the “ordinary meaning” of the concept of holding judicial office to prevail in the face of such considerations.

Contextual considerations in the United Kingdom legislation

84    As explained above, I consider that the question of when Dr Kirk came to hold the office of deputy judge of the Upper Tribunal, for the purposes of s 7(12) of the Remuneration Tribunal Act, directs attention to the question of when she came to hold that office according to the law of the United Kingdom.

85    None of the relevant United Kingdom legislation that is before the Court expressly states the point in time at which a person who is appointed to a judicial office commences to hold that office. However, that legislation provides several indications that, under the law of the United Kingdom, a person who is appointed as a deputy judge of the Upper Tribunal should be understood to hold judicial office on and from the date when their appointment takes effect, and not only from a later date when they are able to sit as a deputy judge and to exercise all the duties of the office.

86    First, paragraph 7(4) of Schedule 3 to the Tribunals, Courts and Enforcement Act provides that “a person is to hold and vacate office as a deputy judge of the Upper Tribunal in accordance with the person’s terms of appointment, which are to be such as the Lord Chancellor may determine”. This suggests that one looks to the terms of the appointment, determined by the Lord Chancellor, in order to ascertain when a person is to commence to “hold … office”. An obvious way in which the Lord Chancellor might express that is by identifying the date on which the appointment is to “take effect” (that being the language used in the letter to Dr Kirk dated 21 May 2024, by which she was informed of her appointment). At least in the context of an appointment to which paragraph 7(4) applies, any distinction between a person’s appointment to an office “taking effect” and the person’s commencing to “hold” the office is elusive.

87    Secondly, paragraph 7(3) provides that the “following provisions” of paragraph 7 apply both to a person appointed under paragraph 7(1) and to a person who “becomes” a deputy judge as a result of provision under s 31(2) of the Tribunals, Courts and Enforcement Act (that is, where the Lord Chancellor has, by order, made provision that the person be the “holder of [the] office” of deputy judge of the Upper Tribunal). I accept the Commonwealth’s submission that this is a small textual indicator that a person who is “appointed” under paragraph 7(1) is, immediately and by reason of the appointment taking effect, in the same position as a person who has “become” a deputy judge – and, as the terms of s 31(2) indicate, that will be a person who “holds [the] office” of deputy judge.

88    Thirdly, paragraph 10(2) of Schedule 3 to the Tribunals, Courts and Enforcement Act, which provides for the taking of oaths, applies to deputy judges who are appointed under paragraphs 1(1), 2(1) or 7(1) of Schedule 3 (see paragraph (10(1)(a)) but also applies in the same way to a person who “becomes” a deputy judge as a result of provision under s 31(2) of the Tribunals, Courts and Enforcement Act (see paragraph 10(1)(b)(ii)). This indicates that a person may “become” a deputy judge before having taken the oath. And, as already noted, a person who has “become” a deputy judge under s 31(2) is a person who, in the language of s 31(2) itself, “holds [the] office” of deputy judge. The use of language in paragraph 10 thus supports the conclusion that a person need not have taken the oaths contemplated by paragraph 10 before they may “become” a deputy judge, and thus commence to hold the office of deputy judge.

89    These provisions demonstrate that a person who becomes a deputy judge by reason of provision made under s 31(2) may thereby hold the office of deputy judge, even though they have not taken the necessary oaths. It follows that the fact that a person has not taken the oaths, and so is not yet permitted to sit as a deputy judge, is not inconsistent with their holding the office of deputy judge. This contradicts a central premise of Dr Kirk’s argument.

90    Once it is accepted that at least some persons (those who become deputy judges under s 31(2) of the Tribunals, Courts and Enforcement Act) may hold the office of deputy judge of the Upper Tribunal even before they have taken the oaths, there is no apparent reason why persons appointed under paragraph 7(1) of Schedule 3 should be in any different position. Indeed, the evident intention of paragraph 7 is to treat all persons who are appointed as or otherwise become deputy judges in the same way.

91    Moreover, one of the “following provisions” referred to in paragraph 7(3) is paragraph 7(3A), which provides that “the person may be removed from office” only in the limited circumstances there identified. This reinforces the conclusion that a person who has been “appointed” under paragraph 7(1) does, without more, hold an office. If such a person did not necessarily hold an office, it would be incongruous to provide for their removal “from office” (as opposed to, for example the cancellation of their appointment).

92    Another relevant provision is paragraph 7(5) of Schedule 3, which provides that the Lord Chancellor may pay to a person to whom that paragraph applies such amounts (if any) as the Lord Chancellor may determine, by way of remuneration, allowances, and/or expenses. The persons to whom paragraph 7(5) applies are those identified in paragraph 7(3): they relevantly include “a person appointed under sub-paragraph (1)”. So, it is the appointment itself that entitles a person to be paid such amounts as the Lord Chancellor determines. Since the entitlement to payment is an ordinary incident of holding an office, this is another indication that the person holds the office of deputy judge from the date of their appointment. That is so whether or not, in a particular case, the Lord Chancellor happens to have determined that a person should be paid any amounts before they have taken the relevant oath or completed other steps that may be necessary before they sit; but it is notable that in Dr Kirk’s case, she was in fact entitled to payment for her attendance at the induction training before those steps were completed.

93    These provisions confirm that a person who has been “appointed” a deputy judge thereby immediately, and without more, holds the “office” of a deputy judge. Such a person may be remunerated in connection with their appointment, and they may be removed from office in defined circumstances (and are otherwise protected from removal from office); both are incidents of holding an office.

94    This conclusion is also consistent with s 7 of the Promissory Oaths Act, which applies to certain judicial officers (not including deputy judges of the Upper Tribunal) and contemplates that an officer who is required to take an oath under that Act may already have “entered on his office” before the occasion for the taking of the oath. Section 7 thus demonstrates that, under the law of the United Kingdom, for judicial officers who are required to take an oath of office, the taking of the oath is not necessarily a legal prerequisite to holding the office.

Use of language in official documents provided in connection with Dr Kirk’s appointment

95    As noted above, paragraph 7(4) of Schedule 3 to the Tribunals, Courts and Enforcement Act provides that a person is to hold and vacate office as a deputy judge in accordance with terms of appointment, which “are to be such as the Lord Chancellor may determine”. In Dr Kirk’s case, the terms of appointment are to be identified by reference to the letter of appointment dated 21 May 2024 and the Memorandum.

The letter of appointment dated 21 May 2024

96    I consider that the letter of 21 May 2024, by which Dr Kirk was informed of her appointment, points towards the conclusion that she held a judicial office from the date of the commencement of her appointment.

97    That letter stated that her appointment as a deputy judge would “take effect from 21 May 2024”. As discussed at [86] above, it is not apparent what appointment to a judicial office “taking effect” on a particular date would mean, if not that the appointee was to hold the office from that date. In the context of an appointment made pursuant to paragraph 7(4) of Schedule 3 to the Tribunals, Courts and Enforcement Act, the use of that expression in the letter of appointment supports the conclusion that 21 May 2024 was the date on which Dr Kirk commenced to hold the office of deputy judge.

98    The letter of 21 May 2024 also makes reference to “the early days of your appointment”. That use of language is neutral as to whether Dr Kirk “held the office” of deputy judge from the date of her appointment or from some other date. However, in the same paragraph, the letter also refers to a welcome page that “provides new judicial office holders with quick and easy access to information and resources to assist you”. This suggest that Dr Kirk was, by virtue of her appointment, and in the early days of her appointment, a member of the class of “new judicial office holders”; it is improbable that the letter meant to convey that the welcome page would only be available to Dr Kirk after she had completed her induction training and had taken the relevant oath. That use of language is at least consistent with the proposition that Dr Kirk, as a person who had just been appointed to a judicial office, was immediately a “judicial office holder”. The apparent immediate availability of the welcome page to Dr Kirk also contrasts with the earlier statement that “you will not be able to sit until you have completed all aspects of required training”. It implies a distinction between being a “judicial office holder” and being “able to sit”; that is, to perform some or all of the duties of the office.

The Memorandum

99    The conclusion that a person appointed as a deputy judge of the Upper Tribunal is a judicial office holder as and from the date of their appointment, without more, is also supported by a consideration of the Memorandum. The Memorandum is an official document which relates to the appointment of persons to, and the holding of, judicial office. The way it is expressed is at least generally consistent with the view that a person holds office from the date when their appointment is expressed to commence.

100    The introductory explanation in the Memorandum includes the following:

This memorandum contains information about the terms and conditions of appointment, which should be understood and agreed by all those accepting appointment. The Lord Chancellor may make changes to these terms and conditions of appointment. Office holders will be given notice in writing of any changes and when they will take effect.

The Memorandum should be read in conjunction with, and may be supplemented by or subject to, other guidance which may be made available to office holders.

…

The Memorandum states the position as at April 2024 and applies to judicial office holders whose appointment is administered by the Ministry of Justice.

(Emphasis in original.)

101    This introductory explanation of the Memorandum does not suggest that there is any relevant distinction between a person who has received an “appointment” and a person who is a “judicial office holder”. The use of language generally appears to indicate that a person who has been appointed will be an “office holder”.

102    The Memorandum, in cl 5.3, states that “[o]ffice holders may choose to end their appointment by resignation or by declining to accept renewal on completion of a term”. That use of language suggests that holding an “appointment” and being an “office holder” are synonymous. In cl 8 of the Memorandum, under the heading “Removal from Office”, the expressions “removal from office”, “remove an office holder” and “terminate the appointment of an office holder” appear to be used interchangeably. Notably, no provision is made for termination of the appointment of a person who has been appointed but who has not yet become an office holder. Again, this is consistent with a person becoming an office holder upon their appointment to a judicial office taking effect, without more. Clause 25.4 states that office holders are expected to submit their resignation if they are nominated as a candidate for election to a parliament; again, no relevant provision is made in respect of persons who have been appointed but are not office holders, suggesting that the term “office holder” is used to describe any person who has been appointed to a judicial office.

103    In cl 11.1 of the Memorandum, under the heading “Sitting requirements”, it is stated that “[o]ffice holders are usually required to make themselves available for a minimum of 30 days a year on tribunal business”. This is neutral as to the point in time at which a person commences to hold a judicial office, but it indicates that the performance of duties of the office is distinct from the holding of the office.

104    Clause 17 of the Memorandum states:

17.    Training, judicial studies, conferences etc.

17.1    The Senior President expects all office holders from time to time to undertake training activity, and to attend training events and courses organised by the tribunal itself or otherwise, which are relevant to the work they do. The Senior President and Lord Chancellor consider that such activity is of considerable value not only for newly appointed office holders but also for those who have been in office for some time.

17.2    Office holders will not normally be allowed to sit until they have attended and satisfactorily completed an initial induction. During the course of their appointment office holders are required to undertake such further training as may be arranged and required by the Senior President. Failure to complete required training may mean that office holders will not be permitted to sit and may be grounds for removal from office.

17.3    There is a daily payment equivalent to the full daily fee rate for attendance at Judicial College courses.

105    Clause 17.1 is principally concerned with continuing training. Clause 17.2 is significant for several reasons. First, it describes a class of persons who “will not normally be allowed to sit” and yet describes those persons as “office holders”. This indicates that a person may be an office holder even though they have not completed the induction training (that being one of the requirements which Dr Kirk submits must be fulfilled before a person can be said to hold the office of deputy judge, as well as being a precondition to taking the oaths which Dr Kirk also submits is an essential requirement that must be met before a person can hold the office). The use of language in cl 17.2 is only consistent with a person being an “office holder” (and thus “hold[ing] a judicial office”) from the date of the commencement of their appointment. Secondly, the third sentence of cl 17.2 states that failure to complete required training (which naturally encompasses both kinds of training referred to in the first two sentences of cl 17.2) “may be grounds for removal from office”; again, this implies that a person who undertakes training (including induction training) already holds their office. Thirdly, the entitlement to a daily payment for attendance at Judicial College courses (including the induction training) is consistent with the attendance at training sessions being an incident of holding a judicial office.

106    Finally, cl 32 of the Memorandum states:

32.    Further information

32.1    Any further information about terms of appointment that may be needed by office holders, or by practitioners who have been offered appointment to judicial office, will be readily supplied by the Ministry of Justice. Most inquiries are best made in the first instance to the Judicial Office.

This provision appears to reflect a dichotomy between “office holders” and “practitioners who have been offered appointment to judicial office”. There is no middle category of persons who have been appointed to judicial office but are not “office holders”.

107    These provisions all use the language of “office holder” in a manner that supports the conclusion that a person holds a judicial office from the date on which their appointment to that office takes effect. It does not appear to me that there are any parts of the Memorandum where the language is inconsistent with that usage.

108    Insofar as the terms and conditions of Dr Kirk’s appointment are provided for in the letter of appointment and the Memorandum, those instruments are consistent with the conclusion reached as a matter of statutory construction, that she held her judicial office from the date on which her appointment was expressed to take effect.

The meaning of “holds a judicial office” as used in Australia

109    As explained above, in my view the question of whether a person holds a judicial office in the service of a government of a country other than Australia should be determined primarily by applying the law of the foreign country in question and by asking whether, according to the law of that country, the person “held” the relevant judicial office at the point in time to which it is necessary to apply s 7(12) of the Remuneration Tribunal Act.

110    In case that approach is incorrect, I now turn to consider what my conclusion would be had I accepted Dr Kirk’s submission that the question should be resolved by reference to the ordinary meaning, in Australia, of the expression “holds a judicial office”.

111    For the reasons given at [78]-[83], I consider that the ordinary sense in which the words “holds a judicial office” are used is consistent with a person coming to hold judicial office from the date when their appointment to judicial office is expressed to take effect. I would regard that as the ordinary meaning of the words as used in Australia.

112    A consideration of legislation regarding the appointment of judges in Australia also does not reveal any clear distinction between a person who has been appointed to a judicial office (and whose appointment has commenced or become effective) and a person who holds judicial office. On the contrary, generally speaking, Australian legislation appears either to be neutral on that question or to suggest that the holding of judicial office is treated as the immediate consequence of the commencement of a person’s appointment to a judicial office. In the discussion that follows, I will refer, by way of example, to Commonwealth legislation only.

113    Section 11 of the Federal Court of Australia Act 1976 (Cth) (FCA Act) provides:

Oath or affirmation of office

A Judge shall, before proceeding to discharge the duties of his or her office, take before the Governor-General, another Judge of the Court, a Justice of the High Court or a Judge of the Supreme Court of a State or Territory an oath or affirmation in accordance with the form in the Schedule.

114    The language of s 11 draws a distinction between a person being a judge, on the one hand, and proceeding to discharge the duties of their office, on the other. The language is consistent with a person being a judge from the date on which their appointment takes effect. It strongly implies that a person may be a judge before they proceed to discharge the duties of the office of judge and, further, that a person may hold their office as a judge, while nevertheless being commanded not to proceed to discharge the duties of that office before taking the required oath or affirmation.

115    Section 11 does not state that a person becomes a judge, or holds office as a judge, only after they have taken the oath or affirmation. The language used in s 11 is more consistent with the duty to take the oath or affirmation being an incident of holding the office and a requirement that arises from the holding of the office of judge, rather than a precondition to the person commencing to hold the office.

116    Consistently with this analysis of the use of language in s 11 of the FCA Act, ss 16(1) and 115(1) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (FCFCOA Act) also each provides, in relation to judges of both divisions of the Federal Circuit and Family Court of Australia, that “[b]efore proceeding to discharge the duties of office, a Judge must take an oath or affirmation …”.

117    Section 6 of the FCA Act relevantly states:

Appointment, removal and resignation of Judges

Appointment of Judges

(1)    A Judge:

(a)    shall be appointed by the Governor-General by commission; and

(b)    shall not be removed 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.

…

Resignation

(4)    A Judge may resign his or her office by writing under his or her hand delivered to the Governor-General, and the resignation takes effect on the day on which it is received by the Governor-General or on such later day as is specified in the writing.

…

118    The language of s 6 is at least consistent with the proposition that a judge holds office from the date when their appointment takes effect, without more. First, the concept of “removal” referred to in s 6(1) must mean removal from office. The juxtaposition between appointment and removal in paragraphs (a) and (b) indicates that removal from office is the means by which an appointment as a judge may be terminated by the executive government, which suggests that persons appointed as judges will thereby hold an office from which they can be “removed”. Secondly, the assumption inherent in the language of s 6(4) is that a judge, by virtue of being a judge, holds an office which they are capable of resigning. There is no apparent means by which a judge may bring their own appointment to an end other than by resigning their “office”.

119    Sections 19, 20, 120 and 121 of the FCFCOA Act provide for the resignation or removal from office of judges of the Federal Circuit and Family Court of Australia in terms that are similar (though not identical to) the FCA Act provisions. Section 11 of the FCFCOA Act provides for the appointment of judges and s 23(2)(a) then refers to a person being “appointed to the office of Judge of the Federal Circuit and Family Court of Australia (Division 1)”; this confirms that appointment of a “judge” is appointment to an “office”, and is consistent with a person who is so appointed holding the office by virtue of the appointment taking effect. Having regard to the provisions of the FCFCOA Act generally, no intended distinction between the concepts of being appointed a judge and holding office as a judge is apparent.

120    None of these provisions are necessarily conclusive, but the use of language is consistent with, and generally tends to support, the view that a person appointed a judge in Australia is taken to hold judicial office from the date on which the appointment takes effect, rather than only from the occurrence of some later event such as the taking of an oath or affirmation. At the least, they are consistent with the conclusion already reached, that the question of when a person who is appointed to a judicial office comes to hold that office depends on the legislation under which they are appointed.

121    I have already mentioned Professor Campbell’s 1999 article, in which she examined the significance of taking oaths in connection with appointment to public office. Describing the modern position in Australia, she expressed the following conclusion (at p 153):

Unless there is a statutory requirement that a person elected or appointed to a public office shall take an oath or affirmation in order to perfect the person’s title to occupy the office, no one has authority to prevent the person entering upon the office without having first taken some oath or affirmation. If the office has been created by or pursuant to statute, the person or body having power to appoint to the office probably cannot even make an offer of appointment conditional on the prospective appointee undertaking to make an oath or affirmation. Such a course of action would hardly be consistent with the statute which confers the power of appointment and which may also have prescribed the qualifications for appointment to the office.

122    I conclude that, while it is undoubtedly open to a legislature to provide expressly that a person appointed to an office, including a judicial office, will not be taken to hold the office until some further condition, such as the taking of an oath or affirmation, has been satisfied, in the absence of any express requirement of that kind, a person should be understood to hold a judicial office to which they are appointed from the date on which the appointment is expressed to take effect.

123    For these reasons, if it were necessary for me to decide whether Dr Kirk held the judicial office of deputy judge of the Upper Tribunal from the date of her appointment by reference to the meaning of that concept in Australia, I would hold that she did.

Conclusion

124    For the reasons explained above, I conclude that Dr Kirk has held the office of deputy judge of the Upper Tribunal from 21 May 2024 onwards.

Issue 2: Does s 7(12) of the Remuneration Tribunal Act only apply to persons who hold judicial office on a full-time basis?

125    Dr Kirk submits 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.

126    The ordinary meaning of the words “holds a judicial office” extends to the holding of a judicial office whether on a part-time or full-time basis. There is no basis in the text of s 7(12) to read down or confine the application of the expression so as to restrict it to persons who hold judicial office on a full-time basis.

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. For example, s 4(2) provides that the Remuneration Tribunal itself is to “consist of three members appointed by the Governor-General on a part-time basis”, and s 4(3) states that a member “holds office” for a period not exceeding five years. This context supports the conclusion that references in the Remuneration Tribunal Act to persons who “hold” an “office” are, generally speaking, not limited to persons who hold an office on a full-time basis.

128    That the expression “if the person holds a judicial office” in s 7(12) extends to the situation of a person who holds judicial office whether on a full-time or a part-time basis is further reinforced by the consideration that, in several subsections within s 7, specific reference is made to public offices being held on either a full-time basis or a part-time basis: see s 7(3AA), (3C), (11), (12A). That is, where it is intended to limit the application of particular subsections to persons who hold offices only on a full-time basis or only on a part-time basis, that limitation appears expressly from the language used in the Remuneration Tribunal Act. Again, the immediate context of s 7 tends to confirm that, had it been intended that s 7(12) should be limited in its application to persons who hold foreign judicial office on a full-time basis, it is to be expected that express language to that effect would have been used.

129    I do not accept Dr Kirk’s submission that, in order for the operation of s 7(12) to “make sense”, it is necessary to construe the expression “holds a judicial office” as limited to the holding of a judicial office on a full-time basis. As explained at [47]-[48] above, the effect of s 7(12) is to disapply s 7(9) in relation to the persons to whom it applies (except as prescribed by regulation), and to return control over the fixing of the remuneration (if any) to be paid to such persons to the executive government.

130    I accept the Commonwealth’s submission that that operation makes sense in relation to persons who hold judicial office on a part-time as well as a full-time basis. The legislative purpose of returning control over the payment of remuneration to the executive government (through the making of regulations) applies sensibly in respect of any case where a person holds judicial office in the service of a State or a foreign country. Such cases are likely to be relatively rare and may present a range of practical and policy complexities. This is sufficient to explain the adoption of a legislative policy of empowering the executive government to determine what, if any, remuneration should be provided in such cases. Moreover, even if it might be concluded that, as a matter of policy, a person who holds a State or foreign judicial office on a part-time basis should continue to receive the remuneration associated with their Commonwealth public office in accordance with relevant determinations of the Remuneration Tribunal, that remains a policy to which the executive government may choose to give effect through the making of regulations of the kind contemplated by s 7(12).

131    Insofar as Dr Kirk’s submission is based on an assumption that the purpose of s 7(12) is to prevent “double dipping” or over-remuneration, and that this would not make sense in the case of a person who held both an Australian office and a foreign judicial office on a part time basis, I do not accept that the purpose of s 7(12) is limited to preventing “double dipping”.

132    For these reasons, I reject Dr Kirk’s contention that s 7(12) is confined in its application to persons who hold judicial office on a full-time basis.

Issue 3: Did Dr Kirk hold a judicial office “in the service of” the United Kingdom between 21 May 2024 and 13 October 2024?

133    Dr Kirk submits that the question posed by s 7(12) of the Remuneration Tribunal Act is whether a person who holds judicial office has “entered into the service of” the government of a State or a country other than Australia. Dr Kirk maintains that, despite having been appointed a deputy judge of the Upper Tribunal, she did not “enter into the service of” the government of the United Kingdom before 13 October 2024.

134    I do not accept this submission. It is difficult to see how the language actually employed in s 7(12) can be read with the consequence that being “in the service of the Government of a State or of a country other than Australia” is to be understood as a characteristic attached to the person, such that a person, while they hold judicial office, may be “in the service of” a government at one point in time but not at another.

135    By far the more natural reading of the language of s 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.

136    Dr Kirk submits that the question of whether she has entered into a judicial office in the service of the government of the United Kingdom “may mean the same as ‘became employed by’ the United Kingdom”, and that “the touchstone of that matter is the receipt of a salary from the United Kingdom”, which did not occur until she received remuneration for attending induction training in December 2024. I do not accept this submission. It involves, in effect, importing the concept of “employment”, in circumstances where the holding of judicial office need not, and often will not, involve any relationship of employment.

137    The use of the expression “in the service of” in s 7(12) is not used to distinguish between holders of State and foreign judicial offices who are and who are not “in the service of” the State or foreign country. I accept the Commonwealth’s submission that the language of “in the service of” simply serves to delimit foreign and State judicial offices from Commonwealth judicial offices.

138    For these reasons, I reject Dr Kirk’s contention that s 7(12) of the Remuneration Tribunal Act did not apply to her from 21 May 2024 because she had not “entered into the service” of the United Kingdom government until she in fact received remuneration was able to sit, or began sitting, as a deputy judge of the Upper Tribunal.

Conclusion

139    For the reasons given above, from 21 May 2024, Dr Kirk held a judicial office in the service of a government of a country other than Australia. In the absence of an applicable regulation to the contrary, the effect of s 7(12) of the Remuneration Tribunal Act was that she was not entitled to the remuneration fixed by the Remuneration Tribunal’s determination in respect of her holding or exercising the duties of a senior member of the AAT.

140    It follows that Dr Kirk is not entitled to the declaratory relief she seeks. Accordingly, her amended originating application must be dismissed. The Commonwealth seeks an order for costs and there is no apparent reason why Dr Kirk should not pay the Commonwealth’s costs of the proceedings.

Associate:

Dated:    24 July 2025