Murray Watt (Queensland, Australian Labor Party, Minister for Agriculture, Fisheries and Forestry) Share this | Hansard source

The Federal Courts Legislation Amendment (Judicial Immunity) Bill 2023 would 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 would 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 the potential for uncertainty or inconsistency in its application, it is appropriate for legislation to provide that clarity. It is 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 amendment would ensure judicial independence, support each person coming before the court to receive an impartial and fair decision, and minimise the risk of vexatious litigation aimed inappropriately at judges from those who are dissatisfied with the outcomes of their decisions. The bill would not affect a person's right to challenge judicial decisions through the appeal process or the ability for parliament to consider the removal of a judge from office under our Constitution on the ground of proven misbehaviour or incapacity. The prospective nature of the bill would not impact on matters currently before the courts or any causes of action that may have already accrued.

The amendments the bill would make are simple. The bill would 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 would achieve the aim of providing clarity but would allow room for the common law doctrine to be refined over time.

The bill would also make consequential amendments to four provisions across the Federal Circuit and Family Court of Australia Act 2021 and the Family Law Act 1975. These consequential changes would 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. 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 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 would provide necessary clarity about judicial immunity and, in turn, assure the timely and effective administration of justice.

Question agreed to.

Bill read a second time.