Dr Linda Kirk is a long forgotten Labor Senator from South Australia (2001-2008) who later had a five year gig as a full-time senior member of the AAT.
When the AAT ceased to exist on October 13, 2024 she was functus officio.
Five months earlier she landed a job as a deputy judge of the Upper Tribunal, the Immigration and Asylum Chamber of the UK at Field House, London.
In fact, she was told by letter from an important official in London that she had been appointed for a term of 18 years [!!] as a deputy part-time, fee earning judge as of May 21, 2024.
She is required to sit for a minimum of a month a year.
Somehow or other, Linda get it into her head the Commonwealth should pay her for the months she was still a senior member of the AAT while she was also had been appointed a deputy judge of the tribunal in London – an idea that the paymasters in Canberra resisted.
Doc Kirk contended that after she got the letter of appointment as a deputy judge she did an induction course and it was not until January 23, 2025 that she took the oath of allegiance and the judicial oath – and then sat as a deputy judge of the Upper Tribunal that morning.
It was left to Justice Stephen McDonald in the Federales to sort out the distinction between appointment to the office and holding the office.
In principle, anyone holding an overseas judicial office can’t be paid as a judicial officer in the Wide Brown Land – at least that’s the message in s.7(12) of the Remuneration Tribunal Act.
Whereas the doctor thought January 23, 2025 was her starting date in London, the AAT back home insisted it was May 21, 2024.
On April 10, 2024 Linda received a letter that offered her a place on the Upper Tribunal. Nine days later she let them know she accepted the job.
Just shy of a month later this letter turned up:
“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 …”
Kirk claimed that the letter of appointment was only a first step to becoming an office holder and that she was not able to sit as a deputy judge until all the requirements had been completed.
HH McDonald considered the relevant question by reference to the law of the UK.
He found no distinction between the date on which an appointment to judicial office takes effect and the date at which the offices comes to be held.
“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.”
Thank god that is cleared up.
It means Doc Kirk will not get AAT wages up to oaths date, January 23, 2025.
How much money was at stake is unclear. If, for instance, it was the hiatus of five months between getting the appointment in London and being functus back home, then she would have been looking at something between $150,000 and $180,000.
Now, with an order to pay the Commonwealth’s costs, the excursion would not have been worth the candle.