Mark Dreyfus (Isaacs, Australian Labor Party, Cabinet Secretary) Share this | Hansard source

The Federal Courts Legislation Amendment (Judicial Immunity) Bill 2023 will make an important amendment to ensure judicial independence and support access to justice in our largest and busiest federal court, the Federal Circuit and Family Court of Australia Division 2. The bill will achieve this by clarifying the scope of judicial immunity for judges of this court. The common law doctrine of judicial immunity serves a critical purpose, and it is important that its scope and operation are clear. Where there is potential for uncertainty or inconsistency in its application, it's appropriate for legislation to provide that clarity. It's essential for our justice system that judges are free to decide matters before them in accordance with their assessment of the facts and their understanding of the law without the threat of being sued. This bill will uphold the independence of the judiciary, encourage the finality of legal proceedings and support the timely and effective administration of justice.

The bill will not mean judges are unaccountable. The bill will not affect a person's right to challenge judicial decisions through the appeal process or the ability of parliament to consider the removal of a judge from office under our Constitution on the ground of proved misbehaviour or incapacity. The prospective nature of the bill will not impact on matters currently before the courts or any causes of action that may have already accrued.

The amendments the bill will make are simple. The bill will provide that judges of Division 2 of the Federal Circuit and Family Court have the same immunity as judges of Division 1 of the Federal Circuit and Family Court. By extending the more settled and broader common law immunity that applies to a judge of a federal superior court to judges of Division 2 of the Federal Circuit and Family Court, the bill will achieve the aim of providing clarity but will allow room for the common law doctrine to be refined over time. The bill will also make consequential amendments to four provisions of the Federal Circuit and Family Court of Australia Act 2021 and the Family Law Act 1975. These consequential changes will ensure that, following the change to Division 2 judges' immunity, there is no confusion about what protections apply to certain individuals who are exercising quasi-judicial functions.

In conclusion, judicial immunity ensures that judges are able to make independent decisions free from any external influence outside of the law itself. In this way, judicial immunity is about protecting everyone who comes to a court. It does not mean that judges are unaccountable, and this amendment is not about protecting the personal interests of judges. We are all entitled to a fair and public hearing by an impartial court, and clarity about the scope of judicial immunity is an important prerequisite to achieving this. This bill will provide necessary clarity about judicial immunity and, in turn, assure the timely, efficient and effective administration of justice.

Question agreed to.

Bill read a second time.

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