Michaelia Cash (WA, Liberal Party, Shadow Minister for Employment and Workplace Relations) Share 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, and that is the independence of the judiciary. This, of course, should be axiomatic in our legal system. Judicial independence itself 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 the more modern expression in chapter III of the Constitution.

But perhaps more relevant in light of recent events and the reason that we have this bill before us here today is that independence is also guaranteed by judicial immunity from civil suit. As senators would have seen, in August of this year Justice Wigney handed down a decision in the Federal Court of Australia in the matter of Stratford (a pseudonym) v Judge Vasta. This is the decision in which Judge Vasta, a judge of 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.

Now, 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 itself is now subject to appeal. But what became apparent very quickly, however, was that the judgement would immediately and profoundly have 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. As a consequence, it flows through directly to the Australian people who come before the courts. The appeals process will take its course, but, of course, appeals are inherently uncertain and may take some time. In the meantime, this judgement is having an impact on our legal system as a whole, and it is right that we address it.

The heart of the problem created by the Stratford 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 a 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 had never previously been in doubt, but the Stratford decision linked that immunity to the 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. For our division 2 judges, it put one of the fundamental principles of our justice system—judicial independence—on an uncertain footing. This is not good for the integrity of our courts or Australians that appear before them. In fact, as the President of the Bar Association, Peter Dunning KC, has 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 Stratford judgement was handed down, I have personally felt 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. But, since the Stratford judgement was handed down, my persistent concern has been that putting judges at risk of personal liability is not the right way forward.

Australia should be proud of its judges, particularly 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 and, in every matter I am aware of, they strive to decide the case before the courts on its merits without fear or favour. This 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 Stratford decision, is potentially at risk and that is the issue that we are now grappling with. Because as we all know, the prospect of liability is one of the best-known motivators for a change in 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 and 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 in the law. We cannot rule out that a judge might subconsciously take the prospect of liability into account in forming a view on the matter before them. I do not say that this is likely nor do I say that parties or their legal representatives would seek to exploit this. But as I said before, judges are human and, as I have been saying for some months now, the Stratford decision should be the catalyst for us to carefully examine the policy settings to see if they are quite right. That is why the coalition has been calling for the bill to be brought forward for the last two months.

I personally wrote to the Attorney-General on 15 September, around two weeks after the Stratford decision, to set out my concerns. I said I'm concerned the judgement may have profound applications for the administration of justice in our country, particularly in division 2 of the Federal Circuit and Family Court of Australia. The letter said:

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.

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It allows a judge to perform their role free from external influences such as a fear of personal liability.

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Members of the judiciary and the legal profession have raised concerns that, following the judgment, there is now significant uncertainty around the limits of judicial immunity, with potential adverse consequences for our legal system.

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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.

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We would of course work constructively with the government in relation to any legislation you bring forward to ensure judges are able to exercise their judicial functions without fear or favour.

Disappointingly, there was no immediate response to that letter. I say 'disappointingly' but also unsurprisingly. And in the depths of that silence the systemic impacts of the Stratford decision started to play out in real time. By late September The Australian newspaper was reporting 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, again, silence. We continued to press the issue.

Just two weeks ago during Senate estimates hearings 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. It told the Senate that cases were being delayed or transferred because of the jurisdictional uncertainties now in play. Delay and transfer—hardly good for the administration of justice in our great country. We expect that the vast majority of those cases are family law cases, meaning additional cost and time for Australians going through some of the most painful sadness and difficult times of their lives.

I wrote again to the Attorney-General on 26 October to press for urgent action, and I said: 'I remain deeply concerned about the potential implications for judicial immunity and for the administration of justice in our country. Evidence given at Senate estimates earlier this week has made clear that, in light of the Stratford decision on 30 August 2023, the need for action is urgent. It is plain 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 now be transferred to either 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 that it could resolve concerns about indemnity and insurance cover for judges. The registrar was explicit that this type of management action is 'not a long-term measure that we would want to adopt as a fix'. I am aware the Stratford 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.

I have 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. I am pleased that the Attorney-General of Australia has now finally listened to these calls, albeit, we were going to introduce a private senator's bill on Monday of this week to ensure this action did occur. But we now have this bill before the Senate. I have been making those calls, as I have stated. Others have been making those calls, and finally we now have this bill being brought to this chamber. The bill makes the very simple fix that we have been calling for. It puts division 2 judges on the same footing as their counterparts in division 1, and like every other superior court established under Commonwealth legislation. And it extends those protections to arbitrators, to registrars and to mediators in appropriate circumstances. This is a good, sensible and overdue change. But, in stating that, I commend the bill to the Senate.