Mark Dreyfus (Isaacs, Australian Labor Party, Cabinet Secretary) Share this | Hansard source

I present the explanatory memorandum to this bill and I move:

That this bill be now read a second time.

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. 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 that 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 quasijudicial functions receive the same immunity as would a judicial officer exercising the same function.

The bill would operate prospectively, meaning that 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 commend the bill to the House.

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