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

I table the explanatory memorandum relating to the bill and move:

That this bill be now read a second time.

I seek leave to have the second reading speech incorporated in Hansard.

Leave granted.

The speech read as follows—

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. This ensures judicial independence and, in turn, supports each person coming before the court receiving an impartial and fair decision. 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 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 quasi-judicial functions receive the same immunity as would a judicial officer exercising the same function.

The Bill would operate prospectively, meaning 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 seek leave to continue my remarks later.

Leave granted; debate adjourned.