Australia’s peak legal body has called for reforms to judicial immunity and expressed its support for the establishment of a federal complaints body after a significant legal case found a sitting judge personally responsible for false imprisonment.
In a recent ruling, the federal court determined that Judge Salvatore Vasta falsely imprisoned a man identified as Mr. Stradford and should not be granted the usual immunity from civil liability typically afforded to judges. This decision has also opened the path for another case against Judge Vasta, alleging false imprisonment in a separate incident during a minor civil matter.
The Law Council of Australia issued a statement emphasizing that judicial immunity is closely tied to the independence of judges and their ability to make decisions in accordance with the law without fear. They believe that the Stradford case underscores the need for further consideration of reforming immunity for Commonwealth judges operating in the federal circuit and family court.
The council’s president, Luke Murphy, stated, “There is a need for certainty and consistency in the approach to immunity and accountability of judicial officers across federal Australian courts and tribunals, noting that legislation in multiple jurisdictions addresses these issues. Importantly, judicial immunity does not mean a lack of accountability for the exercise of judicial functions. The exercise of judicial power carries enormous responsibility, and the effects of judicial decisions on parties can be profound.”
Taking action against judges at the federal level is currently quite limited, and the removal of judges is a challenging process. While most states and territories have their own independent complaints mechanisms for dealing with such issues, there is no federal judicial commission in the Commonwealth.
The Law Council has long supported the establishment of a federal judicial commission to fairly and efficiently address complaints directed at the federal judiciary in an independent and structured manner. Although the Labor party has proposed such a body, it has not yet been established.
The attorney general’s department released a discussion paper in January as part of the government’s consultation process on creating a federal judicial commission. The paper acknowledges the high threshold for removing judges, emphasizing the importance of judicial independence and protection from political interference.
The constitution specifies that a federal judge can only be removed from office “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 misbehavior or incapacity.” To date, no federal court judge has been removed from office under this provision.
The paper also highlights that few complaints have undergone investigation and consideration regarding whether they might engage section 72 of the constitution, which deals with the removal of judges.
Additionally, the Judicial Misbehavior and Incapacity Act allows parliament to establish independent parliamentary commissions to investigate allegations of misbehavior or incapacity by federal judges. These commissions investigate specific allegations and report to parliament on whether there is evidence to conclude that the alleged misbehavior or incapacity has been proven.
The report clarifies that a parliamentary commission cannot compel a judge to provide evidence or documents but can hold hearings, obtain documents, and require the attendance of other individuals. However, it does not make recommendations or dictate the standard of proof; that remains a matter for the parliament to determine.
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