Anthony Chisholm (Queensland, Australian Labor Party, Assistant Minister for Education) Share this | Hansard source

I give notice that, on the next day of sitting, I shall move:

That the provisions 5 to 8 of standing order 111 not apply to the Federal Court Legislation Amendment (Judicial Immunity) Bill 2023, allowing it to be considered during this period of sittings.

I also table a statement of reasons justifying the need for this bill to be considered during these sittings and seek leave to have the statement incorporated in Hansard.

Leave granted.

The statement read as follows—

Purpose of the Bill

The Bill would amend the Federal Circuit and Family Court of Australia Act 2021 (FCFCOA Act) to provide that a judge of Division 2 of the Federal Circuit and Family Court of Australia (FCFCOA) has the same immunity as a judge of Division 1 of the FCFCOA. The Bill would also make consequential amendments to four provisions across the FCFCOA Act and the Family Law Act 1975 to give effect to this measure by substituting all references to a 'Division 2 judge' with a 'Division 1 judge'. These four provisions currently provide arbitrators, mediators, registrars and the FCFCOA Chief Executive Officer with the same immunity as a judge of the FCFCOA (Division 2) when performing quasi-judicial functions.

Judicial immunity is a common law doctrine that protects judges from personal liability for actions done as part of their judicial functions. Its purpose is to preserve the independence of the judiciary, support the effective administration of justice and ensure the finality of legal proceedings. Case law on the scope of judicial immunity for judges of the FCFCOA (Division 2)—the only federal inferior court of record—suggests that judicial immunity applies to them more narrowly than it does to their superior court counterparts. For judges of federal superior courts, namely the High Court of Australia, the Federal Court of Australia and the FCFCOA (Division 1), judicial immunity protects judges even if they act without or in excess of jurisdiction, unless they did so knowingly. The Federal Court of Australia recently found in Stradford (a pseudonym) v Judge Vasta [2023] FCA 1020 that immunity for judges of the FCFCOA (Division 2) may be lost where it is found that the judge acted without or in excess of jurisdiction, even if they did so unknowingly or in good faith. The findings of the Federal Court in this matter has created uncertainty for judges of the FCFCOA (Division 2).

The Bill would provide clarity about the scope of judicial immunity for FCFOCA (Division 2) judges. The prospective application of the Bill would not disturb any matters currently before the Courts or causes of action that may have already accrued. Judicial officers of state and territory inferior courts have the same level of immunity as judges of superior courts, and this amendment would ensure the same arrangements for the federal courts.

Reasons for Urgency

Passage of the Bill in the 2023 Spring sittings is required to ensure that the ongoing risk of litigation against FCFCOA (Division 2) judges is minimised, including vexatious litigation aimed inappropriately at judges from those who are dissatisfied with the outcomes of their decisions.

The FCFCOA (Division 2) is the largest federal court in Australia. It has jurisdiction to hear a broad range of matters including family law, migration and general federal law matters. It is the single point of entry for all federal family law disputes. The Bill would give certainty to judges of the FCFCOA (Division 2) about the protections available to them when discharging their judicial functions, and provide certainty for our justice system. To mitigate any risks to the administration of justice arising from this, it is essential that this clarity is provided as soon as possible.

(Circulated by authority of the Attorney-General)