Key points

• The purpose of the Federal Courts Legislation Amendment (Judicial Immunity) Bill 2023 (the Bill) is to provide judges of Division 2 of the Federal Circuit and Family Court of Australia (FCFCOA) and certain other officers with the same immunity as a judge of Division 1 of the FCFCOA. The FCFCOA (Division 2) is the only inferior federal court.
• While it has been long understood that the common law doctrine of judicial immunity applies to federal court judges, it has not been clear whether it applies differently to superior court judges and inferior court judges.
• The Federal Court of Australia recently found in Stradford (a pseudonym) v Judge Vasta [2023] FCA 1020 that judicial immunity applies more narrowly to judges of the FCFCOA (Division 2) and may be lost in certain circumstances.
• Both the Law Council of Australia and the Australian Bar Association have called on the Government to legislate for judicial immunity for judges of the FCFCOA (Division 2).
• The Government has stated that urgent passage of the Bill ‘is required to ensure that the ongoing risk of litigation against FCFCOA (Division 2) judges is minimised, including vexatious litigation aimed inappropriately at judges from those who are dissatisfied with the outcomes of their decisions’.
• The Coalition has indicated that it will work constructively with the Government to pass the Bill.
• The amendments would not impact on any matters currently before the courts or causes of action that may have already accrued prior to the commencement of the amendments.

Introductory Info

Date introduced: 7 November 2023
House: Senate
Portfolio: Attorney-General
Commencement: the day after Royal Assent

Purpose of the Bill

The purpose of the Federal Courts Legislation Amendment (Judicial Immunity) Bill 2023 (the Bill) is to amend the Federal Circuit and Family Court of Australia Act 2021 (FCFCOA Act) and the Family Law Act 1975 to:

• provide that a judge of Division 2 of the Federal Circuit and Family Court of Australia (FCFCOA) has the same immunity as a judge of Division 1 of the FCFCOA and
• provide arbitrators, mediators, registrars and the FCFCOA Chief Executive Officer with the same immunity as a judge of Division 1 of the FCFCOA when performing specified functions.

Background

History of the FCFCOA

Chapter III of the Constitution establishes the High Court of Australia and empowers the Parliament to create other federal courts and to vest federal judicial power in state and territory courts.

Prior to 2021, there was a separate Family Court of Australia which dealt with family law matters (except in Western Australia) and a Federal Circuit Court of Australia (formerly the Federal Magistrates Court of Australia) which heard less complex matters in areas of federal jurisdiction, including family law, migration and general federal law matters.

The FCFCOA Act was assented to on 1 March 2021 and commenced on 1 September 2021. The FCFCOA Act changed the administrative structure and operations of the Family Court of Australia and the Federal Circuit Court of Australia, which were renamed and continued in existence as the FCFCOA (Division 1) and the FCFCOA (Division 2) respectively.

The doctrine of judicial immunity

It is a long-standing principle of common law that judges in Australia have some level of civil immunity from acts done in the course of their judicial work.[1] As stated by former High Court Chief Justice Murray Gleeson, ‘the basis of the immunity is the constitutional imperative of judicial independence’. It allows judicial officers to exercise their powers without fear of personal liability.[2]

However, while the concept of judicial immunity is clear, the exact nature of its scope is not, particularly with respect to inferior court judges. Courts are classified as either superior courts or inferior courts. According to the State Library of NSW, the principal Australian superior courts are:

• High Court of Australia
• Federal Court of Australia
• Division 1 of the FCFCOA
• Supreme Courts of the states and territories
• Land and Environment Court of New South Wales
• Industrial Relations Commission of New South Wales
• Industrial Court of Queensland.

All courts that are not superior courts are inferior courts. The FCFCOA (Division 2) is the only federal inferior court in Australia (p. 2).

Decision in Stradford (a pseudonym) v Judge Vasta

The extent to which judicial immunity applies to inferior court judges was recently considered by the Federal Court of Australia in Stradford (a pseudonym) v Judge Vasta [2023] FCA 1020 (Stradford v Vasta).

The matter involved an applicant seeking compensation as a result of having been falsely imprisoned:

In December 2018, a judge of the then Federal Circuit Court of Australia, who was hearing a matrimonial cause involving the applicant in this matter, ordered that the applicant be imprisoned for twelve months, purportedly for contempt of court. The applicant spent seven days in police custody and prison before the order which had resulted in his imprisonment was stayed pending an appeal. The Full Court of the then Family Court of Australia subsequently set the judge’s order aside on the basis that the judge had erred in several fundamental respects. The Full Court concluded that to permit the order to stand would be an “affront to justice”.[3]

The applicant sought compensation from the judge, the Commonwealth and Queensland for the loss and damage he suffered as a result of his imprisonment. One of the issues the court was required to consider was whether the judge was immune from any liability because he made the imprisonment order in his capacity as a judge.

In his decision, Justice Wigney noted that this issue was not straightforward, as the Federal Circuit Court of Australia was an inferior court, and the judge was not protected by any statutory immunity:

The difficulty arises because the common law principles concerning judicial immunity that apply in respect of inferior court judges, at least in Australia, are somewhat unsettled. It is therefore necessary to embark on an excursion through a long line of cases, stretching back hundreds of years, which deal with the circumstances in which an inferior court judge may lose the protection of judicial immunity.[4]

After considering relevant authorities on this issue, Justice Wigney arrived at four exceptional circumstances where a judge of an inferior court may not be protected by judicial immunity:

• where the judge makes an order in a proceeding or cause in which the judge did not have “subject-matter” jurisdiction; that is, no jurisdiction to hear or entertain in the first place
• where the judge, despite having subject-matter jurisdiction in the proceeding, nevertheless makes an order without, or outside, or in excess of the jurisdiction he or she had to hear or entertain the proceeding
• where, despite having jurisdiction to hear or entertain the proceeding, the judge is guilty of some gross and obvious irregularity in procedure, or a breach of the rules of natural justice, other than an irregularity or breach which could be said to be a merely narrow technical one
• where, despite having jurisdiction to hear or entertain the proceeding, the judge acts in excess of jurisdiction by making an order, or imposing a sentence, for which there was no proper foundation in law, because a condition precedent for making that order or sentence had not been made out.[5]

Justice Wigney found that the judge in this matter had acted outside of his jurisdiction when he imprisoned the applicant, that there was a ‘gross and obvious irregularity in procedure’, and the judge ‘was guilty of a gross denial of procedural fairness and breach of the rules of natural justice’.[6]

Following the decision, it was reported that ‘experienced and diligent judges [of the FCFCOA] are now in an impossible position’ and that there are ‘certain types of cases that they cannot hear’.

Proposal to establish a Federal Judicial Commission

On 29 September 2022, the Government published its response to the Australian Law Reform Commission’s (ALRC) 2021 report, Without Fear or Favour: Judicial Impartiality and the Law on Bias (ALRC Report), agreeing in-principle with the ALRC’s recommendation that the Government should establish a federal judicial commission to investigate complaints against federal judges (recommendation 5). 

As noted by the Attorney-General’s Department (AGD), ‘the establishment of a federal judicial commission would follow the creation of similar bodies in five of Australia’s states and territories’. AGD commenced consultations on this proposal in January 2023 and released a discussion paper on the model and key features of a federal judicial commission.

The Government received 57 written submissions, and is currently considering responses. In its response to the ALRC report, the Government noted that ‘any model for a federal judicial commission must respect the independence of the courts and judiciary in accordance with the Constitution’ and ‘this independence is fundamental to the rule of law and democracy in Australia’ (p. 4).

Committee consideration

At the time of writing, the Bill has not been referred to any committees.

Senate Standing Committee for the Scrutiny of Bills

At the time of writing, the Senate Standing Committee for the Scrutiny of Bills had yet to consider the Bill.

Policy position of non-government parties/independents

The Coalition has stated that it ‘would work constructively with the Government in relation to any legislation required to ensure judges can exercise their judicial functions without fear or favour’. The Shadow Attorney-General, Senator Michaelia Cash, noted that ‘the issue needs to be resolved quickly to give judges certainty and allow our court system to function properly’.

Position of major interest groups

Following the judgment in Stradford v Vasta, the Law Council of Australia commented that the judgment ‘highlights the particular need for further consideration to be given to legislative certainty with respect to the Federal Circuit and Family Court’.

The Australian Bar Association also called for legislative changes, stating that ‘the issue raised concerning judicial immunity is one of such magnitude that it should be the subject of urgent legislative consideration, regardless of whether the judgement is appealed’.

In a speech to the Australian Bar Association, the FCFCOA Chief Justice Will Alstergren said that there was an “urgent and compelling need” for the Government to legislate to provide a statutory immunity “in the same form as enjoyed by nearly every state and territory court in Australia and many of its tribunals and commissions”.

Financial implications

The Government has stated that the Bill will not have any financial implications (p. 3).

Statement of Compatibility with Human Rights

As required under Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011, the Government has assessed the Bill’s compatibility with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of that Act.

The Government considers that the Bill is compatible as it promotes the right to a fair trial and a fair hearing under Article 14(1) of the International Covenant on Civil and Political Rights.[7]

Parliamentary Joint Committee on Human Rights

At the time of writing, the Parliamentary Joint Committee on Human Rights had yet to consider the Bill.

Key issues and provisions

Judicial immunity for judges

Item 4 of the Bill inserts proposed section 277A into the FCFCOA Act. Section 277A provides that a judge of Division 2 of the FCFCOA has the same protection and immunity as a judge of Division 1 of the FCFCOA.

According to the Explanatory Memorandum:

The amendment would use the more settled and broader common law immunity that applies to a judge of a federal superior court (that of the FCFCOA (Division 1)) and extend it to judges of the FCFCOA (Division 2). Using the more settled common law immunity would provide clarity without needing to codify the scope of judicial immunity for all federal judges. It would also allow for the future common law refinement of the doctrine. (p. 7)

Judicial immunity for arbitrators and meditators

Items 1-2 of the Bill will amend the Family Law Act and the FCFCOA Act to provide that the following people performing the following functions will have the same protection and immunity as a superior court judge:

• a family law arbitrator, when performing their functions in family law property and financial matters
• a mediator conducting a mediation in non-family law proceedings before Division 2 of the FCFCOA and
• an arbitrator conducting an arbitration in non-family law proceedings before Division 2 of the FCFCOA.[8]

Judicial immunity for certain FCFCOA staff

Item 3 of the Bill will amend subsection 257(1) of the FCFCOA Act to provide that the following people will have the same protection and immunity as a judge of Division 1 of the FCFCOA:

• the FCFCOA Chief Executive Officer
• a Senior Registrar of the FCFCOA and
• a Registrar of the FCFCOA

when they are conducting a conference related to property settlement proceedings or exercising a power of the FCFCOA that has been delegated to them under section 254 of the FCFCOA Act (such as the power to make certain orders or to direct a party to family law or child support proceedings to answer particular questions).

Prospective application of amendments

Item 5 of the Bill states that the amendments in the Bill only apply in relation to functions performed on or after the day the Bill commences.

As noted in the Explanatory Memorandum, ‘the prospective application means that the amendments would not impact on any matters currently before the Courts or causes of action that may have already accrued prior to the commencement of Schedule 1’ (p. 7). This may be of concern to stakeholders who assumed that they had immunity with respect to previous decisions, particularly regarding matters relating to jurisdictional issues, and may now face civil liability claims as a result of these decisions.