David Shoebridge (NSW, Australian Greens) Share this | Link to this | Hansard source

The Greens don't oppose the Federal Courts Legislation Amendment (Judicial Immunity) Bill 2023. Indeed, we understand why it's been brought forward. Judicial immunity is essential for judicial officers to act with courage and independence and not be second-guessing whether or not a brave or tough call might find them being challenged by a litigant or a witness who comes before their courts. For those reasons, we won't be opposing the bill. In fact, we see a rationale for the bill being brought to the Senate and passed.

However, certain conduct that has underpinned the challenges to certain judicial actions deeply troubles my party, and I know it deeply troubles many keen observers of the legal system. We've seen judicial officers act well outside the bounds of acceptable conduct. We've seen them belittle and mock witnesses and litigants. We've seen them exceed the bounds of any reasonable action of a judicial officer. In one notorious case, it was by putting an individual behind bars in a gross excess of any kind of reasonable powers by a court to vindicate their authority and to properly deal with potential contempt. We've seen appalling behaviour by judicial officers. That is why we're concerned about what is not brought with this bill—a judicial commission.

An independent judicial commission can be a place where those matters are sent. It can form an independent view—independent of politics and of the courts system—of poor judicial conduct or allegations of poor judicial conduct. I want to be clear: not every complaint about judicial officers is in any way valid. One of the reasons we support this bill is to allow judicial officers to make rugged, robust and tough decisions free from the risk of litigation, and, if a complaint is made about a judicial officer, that should be dealt with in a fundamental, fair and independent way. At the moment, there is no such place in the federal system. My home state of New South Wales has a longstanding judicial commission, which has been of enormous assistance in dealing with complaints against judicial officers. In nine times out of 10 it has dismissed the complaint of a disgruntled litigant. But on those occasions where it's exposed poor behaviour by judicial officers, it's been an important part of an independent court system, and it's ensured that those complaints are dealt with in an independent rather than political forum.

So we say to the Attorney-General and the Albanese government, yes, we will support this bill. But this is all carrot and no stick when it comes to the judiciary. There needs to be a clear timetable for the delivery of an independent federal judicial commission, matched and mirrored on the New South Wales independent judicial commission. We've heard a lot of talk from the Attorney-General and the Albanese government about bringing this forward. We're yet to see it. So we support this bill, and we look forward in the very near future to supporting or amending or improving a bill that also puts in place a judicial commission.

Michaelia Cash (WA, Liberal Party, Shadow Minister for Employment and Workplace Relations) 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, 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.

… … …

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 judgment, 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 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.

Pauline Hanson (Queensland, Pauline Hanson's One Nation Party) Share this | Link to this | Hansard source

I have concerns about this bill, the Federal Courts Legislation Amendment (Judicial Immunity) Bill 2023, and on behalf of the Australian people I'm going to make my concerns known. It may sound good, but we had the Family Court and the Federal Circuit Court, and that's because the two courts were separated. We had the Federal Circuit Court, which dealt with more important issues like international law and property settlements. Those cases that were not settled in the lower courts were brought to the upper court. The Family Court was basically a lot of judges to deal with family law and migration issues, and they became the Federal Circuit and Family Court. The two courts were merged under the coalition government, which I fully supported as I think it was a good move. My concern and the concern of the Australian people about this legislation is giving these judges immunity on their decisions. That concerns me. How will they be held to account?

I was told people can appeal. But usually, after they have gone through the family law courts, they are drained. A lot of people cannot take it anymore. Fed up with the court system, they actually are desperate. They've probably sold their home, so they have nowhere to live, and their finances are at rock bottom. They are at rock bottom themselves, and it seems a decision can be handed down by a judge who cannot then be held to account for the decision. A lot of these parents that are brought before the family law court—and I have dealt with them over the years—are really so distraught because most of the time a lot of these parents don't even get to see their children. They have no time with their children, and that is the decision of the courts. Why aren't the judges held to account? You can say they can appeal, but, like I said, they can't afford to appeal. Who will hold these judges to account? These judges must be held to account, just as I believe that bureaucrats should be held to account and politicians should be held to account on decisions that are made that have an impact on the Australian people. I think that just saying, 'No, let's treat them all the same and give them immunity,' means that people don't have recourse.

They say you can appeal; you can write and say, 'The judge didn't read these papers,' or, 'The judge made the wrong decision.' How are they going to prove that? How are you actually going to say to a judge, 'You didn't read it'? It's his word against yours that he read it. That's the decision he's made. How is a person going to hold a judge to account when appealing their sentence? It's not going to happen. We all know that. A lot of these judges are a protected species, the same as bureaucrats and politicians. I think there has to be some accountability for the people of this nation.

We see what happens to a lot of these families. The Labor government just passed their Family Law Amendment Bill, which I opposed as well. As I kept saying, where is the accountability there? You talk about the rights of the child, yet you forget to talk about the rights of the parents to see their children. But it's like, 'Oh well; it's just the rights of the child.' No-one could even answer the questions in this place. You just go back to the same old hearsay about the rights of the child. Where are the rights of the Australian people to have that protection?

What I'm hearing also is that some parents are fed up with the decisions that deny their rights to see their children for years on end for no real reason whatsoever. They've been blocked, or they can't afford to take it back to court to get some justice. They are absolutely devastated. Where are their rights? You deny them their rights, but you actually want to protect the judges. You want to give them immunity—from what? It's immunity from the people being able to hold them to account. I don't get it; I don't understand. And this is being supported by both sides of parliament. I don't know how the Greens or the crossbench feel about this. But I just don't feel it's right. People should have the opportunity to hold these judges to account.

I've heard also, 'Well, the judges will be in fear of handing down their decisions because there's not going to be immunity.' I hear of a class action against some of these judges and the decisions being made. If you actually bring this in, they will not be able to have a class action against these judges and the decisions that they've made, so, for the Australian people, you're shutting down an opportunity to hold them accountable for the decisions that they have made. This affects so many families and so many people out there. I'd like this to go to committee. I would like to be able to ask the minister some questions with regard to this. I won't be supporting this to be shut down. I'd like it to go to committee so that I can ask some further questions of the minister with regard to this bill.

Murray Watt (Queensland, Australian Labor Party, Minister for Agriculture, Fisheries and Forestry) Share this | Link to 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.