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

I present the explanatory memorandum to this bill and I move:

That this bill be now read a second time.

This bill would confirm that the same form of judicial immunity that applies to judges of the Federal Circuit and Family Court of Australia (Division 1) also applies to judges of the Federal Circuit and Family Court of Australia (Division 2).

Background

The Federal Circuit and Family Court of Australia (FCFCOA) (Division 2) is Australia's largest federal court. It has jurisdiction to hear a broad range of family law, migration and general federal matters. It is the single point of entry for all federal family law disputes.

The Federal Circuit and Family Court of Australia (Division 2) is also the only inferior court at federal level. The Federal Circuit and Family Court of Australia (Division 1), and each of the other federal courts, are superior courts.

The expression 'inferior court', it is important to note, is not a pejorative. It is a legal term of art. The common law has long recognised distinctions between the jurisdiction and powers of superior courts and inferior courts. In the recent decision of Stradford (a pseudonym) v Judge Vasta, a justice of the Federal Court of Australia drew on centuries of common law to conclude that judges of the Federal Circuit and Family Court (Division 2) have more narrow protection under the doctrine of judicial immunity than do their counterparts in superior courts, including the Federal Circuit and Family Court (Division 1).

Judicial immunity protects judges from personal liability for actions done as part of their judicial functions. Judges must be able to decide matters before them in accordance with their assessment of the facts and their understanding of the law without the threat of being personally sued.

Following the decision of the Federal Court, there is uncertainty as to the scope of judicial immunity that applies to judges of the Federal Circuit and Family Court (Division 2). The common law concerning what judicial immunity is enjoyed by inferior court judges is highly complex, spanning centuries of case law.

This uncertainty is undesirable, and it arises because the parliament has not previously clarified the scope of immunity that applies to Federal Circuit and Family Court (Division 2) judges.

This bill would resolve that uncertainty.

It is important to note that this bill does not condone misbehaviour or inappropriate conduct by any judge.

Judges can be held accountable in a number of ways.

Most obviously and most commonly, judicial errors can be corrected through appeal.

Complaints about judges can be made to the chief judicial officer of the relevant court.

In extraordinary cases, under section 72 of the Constitution, a judge can be removed by the Governor-General in Council on an address from both Houses of the Parliament in the same session, praying for such removal on the ground of proved misbehaviour or incapacity.

A parliamentary commission under the Judicial Misbehaviour and Incapacity (Parliamentary Commissions) Act 2012 can be established to investigate a specified allegation of misbehaviour or incapacity in relation to a judge.

Effect of legislative amendments

The approach in the bill is simple. It would extend the more settled and broader common law immunity that applies to a judge of a federal superior court to judges of the Federal Circuit and Family Court of Australia (Division 2). This achieves the aim of providing clarity, without unduly attempting to codify the scope of judicial immunity for federal judges. It will also allow for the doctrine to be refined over time by future decisions of the courts.

The consequential amendments in the bill will also ensure that there is no confusion about the immunity afforded to arbitrators, mediators, registrars and the Federal Circuit and Family Court of Australia Chief Executive Officer after the change to Division 2 judges' immunity. There is no change to the existing policy that certain officers undertaking particular quasijudicial functions receive the same immunity as would a judicial officer exercising the same function.

The bill would operate prospectively, meaning that it would not affect any matters currently before the courts or any causes of action that may have already accrued.

Conclusion

Judicial immunity plays an important role in upholding the integrity and independence of the judiciary. By providing judges of the Federal Circuit and Family Court of Australia (Division 2) with legislative clarity about what protections are available to them when they exercise their judicial functions, this bill will uphold the independence of the judiciary, encourage the finality of legal proceedings and support the timely and effective administration of justice. I commend the bill to the House.

Dan Tehan (Wannon, Liberal Party, Shadow Minister for Immigration and Citizenship) Share this | Link to this | Hansard source

I rise to speak on the Federal Courts Legislation Amendment (Judicial Immunity) Bill 2023. This bill goes to a matter of fundamental importance, the independence of the judiciary, which should be axiomatic in our legal system. Judicial independence is guaranteed by a few key pillars. First and foremost, we guarantee independence through security of tenure and remuneration, concepts dating back to at least the act of settlement but finding more modern expression in chapter 3 of the Constitution. But, perhaps more relevantly in light of recent events, independence is also guaranteed by judicial immunity from civil suit.

As members would no doubt have seen, in August this year Justice Wigney handed down a decision in the Federal Court of Australia in the matter of Stradford (a pseudonym) v Judge Vasta. That is the decision in which Judge Vasta, a judge in Division 2 of the Federal Circuit and Family Court of Australia, was found personally liable in respect of a contempt declaration and related order that he had made. I don't wish to express a view, one way or another, about the merits of the judgement, or about the circumstances that led to the judgement being made. That would not be appropriate in this place, particularly when the decision is subject to appeal. What has very quickly become apparent, however, is that the judgement has had immediate and profound implications for the immunity of a vast number of judicial officers throughout Australia. It has had systemic impacts. It affects the way judges do business and, as a consequence, it flows through directly to the Australians who come before our courts.

The Stradford decision has been appealed, and the appeal process will take its course. However, appeals are inherently uncertain and may take some time. In the meantime, the judgement is having an impact on our legal system as a whole, and it is right that we address it. Liability based on jurisdictional issues is not the way forward. The heart of the problem created by the Stradford decision is this: judicial immunity may be lost where it is found that a judge acted without, or in excess of, jurisdiction, even if they did so unknowingly or in good faith. It is worth emphasising that last point, which has been expressly acknowledged by the government. Immunity could be lost if the judge exceeded their jurisdiction, even if they did so unknowingly or in good faith.

As any legal practitioner knows, jurisdiction is a complex, uncertain and contested issue. The immunity of judges in division 2 of the Federal Circuit and Family Court, and other similar courts, has never previously been in doubt, but what the Stradford decision did was to link that immunity to a complex, uncertain and contested issue of jurisdiction. This was an issue specific to division 2. It did not affect division 1 of the court or the Federal Court of Australia. But, for our division 2 judges, it put one of the fundamental principles of our justice system—judicial independence—on an uncertain footing. That is not good for the integrity of our courts or the Australians that appear before them. As the President of the Australian Bar Association, Peter Dunning KC, stated:

Judicial immunity is an important institutional requirement in facilitating the fearless administration of justice by judges across Australia. When occasions arise, such as the present, that in a significant way impact the understanding of its boundaries, it is always appropriate to consider whether the immunity remains appropriately calibrated to securing that fearless independence.

Since the Stradford judgement was handed down, the coalition has observed a sense of grave disquiet over the prospect of judges being found personally liable by a party to a case because of the way it proceeded through the court. That is not to say that judges must not be held accountable for their conduct if they transgress. That is a given. Rather, it is to acknowledge that judges are human. Since the Stradford judgement was handed down, the coalition concern has been that putting judges at risk of personal liability is not the right way forward.

Australians should be proud of their judges, and I want to acknowledge the judges in division 2 of the Federal Circuit and Family Court of Australia. The judges of division 2 of the Federal Circuit and Family Court are the backbone of our judiciary. They are the frontline judges, the ones who decide the overwhelming majority of cases that directly affect Australian families. They are hardworking, talented and highly skilled. They strive to decide the case before the court, on its merits, without fear or favour. That is not a behaviour we should seek to change. It is part of the essential character of our justice system that we should seek to preserve, but it is precisely the thing which, in light of the Stradford decision, is potentially at risk. That is the issue we're now grappling with, because, as we all know, the prospect of liability is something that tends to change behaviour. Anyone who has faced the prospect of personal liability for conduct in their professional capacity knows that merely the threat of a claim can have a powerful impact. Even the knowledge that an avenue of a challenge is available can be influential.

We know that litigation casts a long shadow. It can be launched for many reasons. Quite apart from the financial and professional burden of an adverse finding on liability, the process itself can be a heavy weight to bear, even for those who are highly experienced at the law. We cannot rule out that a judge might subconsciously take the prospect of liability into account in forming a view on a matter before them. The coalition does not say that this is likely. The coalition does not say that parties or their legal representatives would seek to exploit this, but, as I've said before, judges are human and, as the coalition has been saying for some time, the Stradford decision should be the catalyst for us to carefully examine the policy settings to see if they are right.

That is why the coalition has been calling for this bill to be brought forward for the last two months. The shadow Attorney-General, Senator Cash, wrote to the Attorney-General on 15 September, around two weeks after the Stradford decision, to set out our concerns. She said: 'I am concerned that the judgement may have profound implications for the administration of justice in our country, particularly in division 2 of the Federal Circuit and Family Court of Australia. Immunity from suit serves a critical role in ensuring that a judicial officer can make decisions based on the merits of the case and the application of law. It allows a judge to perform their role free from external influences, such as a fear of personal liability. Members of the judiciary and the legal profession have raised concerns that, following the judgement, there is now significant uncertainty around the limits of judicial immunity, with potential adverse consequences for our legal system. In your capacity as first law officer I ask that you urgently progress options to restore certainty to our judiciary, whether legislative or non-legislative. We would, of course, work constructively with the government in relation to any legislation you bring forward, to ensure that judges are able to exercise their judicial functions without fear or favour.'

There was no immediate response to this letter. In the depths of that silence, the systemic impacts of the Stradford decision started to play out in real time. By late September the Australian newspaper was reporting that matters had been put on hold or transferred to other courts because of uncertainties around jurisdictional questions and the impact on division 2 judges. By October it was reported that the Federal Circuit and Family Court had asked the Attorney-General's office to intervene, but from that office—silence. We continued to press the issue. Just two weeks ago, during a Senate estimates hearing, the court gave very disturbing evidence about the immediate and adverse impacts on litigants with cases before division 2 of the Federal Circuit and Family Court of Australia. They told the Senate that cases were being delayed or transferred because of the jurisdictional uncertainties now in play—delay and transfer. We expect that the vast majority of those cases are family law cases, meaning additional costs and time for Australians going through some of the most painful, sad and difficult times in their lives.

Senator Cash wrote to the Attorney-General again on 26 October to press for urgent action. She said: 'I remain deeply concerned about the potential implications for judicial immunity and the administration of justice in our country. Evidence given at Senate estimates earlier this week has made clear that, in light of the Stradford decision on 30 August 2023, the need for action is urgent. It is plain that there are very limited options available to manage the risk to affected judges. For example, the registrar of the Federal Circuit and Family Court of Australia gave evidence that where, there is uncertainty around the potential for personal liability in division 2 of that court, a matter may be transferred either to division 1 or to the Federal Court of Australia. However, it is unclear what additional costs and delays this type of transfer could inflict on the parties, nor whether it could resolve concerns around indemnity and insurance cover for the judges. The registrar was explicit that this type of management action is not a long-term measure that they would want to adopt as a fix. I am aware that the Stradford decision is currently subject to appeal. However, as you know, the outcome of any appeal is uncertain and may not be known for a very long time. As first law officer with responsibility for the administration of justice in our country, I urge you to address this issue as an immediate priority.' The coalition has not been alone in making these calls. The Australian Bar Association, the Law Council, judicial officers and the legal profession have all been calling for these changes. We are pleased the Attorney-General has finally listened to the calls we have been making alongside so many others and brought this bill to the chamber.

The bill makes the very simple fix we've been calling for. It puts Division 2 judges on the same footing as their counterparts in Division 1 and likely every other superior court established under Commonwealth legislation. It extends those protections to arbiters, registrars and mediators in appropriate circumstances.

This is a good, simple, sensible and overdue change, and I commend the bill to the House.

Mark Dreyfus (Isaacs, Australian Labor Party, Cabinet Secretary) Share this | Link to 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.