Australia’s peak lawyers body has called for reform to judicial immunity and reiterated its support for a federal complaints body after a landmark case finding a sitting judge personally liable for false imprisonment.
Earlier this week, the federal court ruled inferior court judge Salvatore Vasta falsely imprisoned a man, known only as Mr Stradford, and should not be afforded the usual immunity from civil liability afforded to members of the bench.
Guardian Australia revealed this morning that the decision has paved the way for a separate case to proceed against Vasta alleging he falsely imprisoned a second man, also during a minor civil matter.
The Law Council of Australia issued a statement on Friday saying judicial immunity was “intrinsically related” to the independence of judges and their ability to fearlessly make decisions according to the law.
They said the Stradford decision highlighted the need for “further consideration to be given” to reform to immunity for commonwealth judges operating in the federal circuit and family court.
“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,” council president Luke Murphy said.
“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.”
The ability to take action against judges is severely limited at a federal level and removing them from the bench is difficult. The commonwealth lacks a federal judicial commission, which would be able to investigate complaints against judicial officers, though most states and territories have their own independent complaints mechanisms to deal with such issues.
The law council said it had “long supported” calls for a federal judicial commission.
“The law council has long supported this initiative as one that can fairly and punctually address complaints directed to the federal judiciary in an independent and structured manner,” Murphy said.
Labor has proposed such a body but is yet to establish it.
In January, the attorney general’s department released a discussion paper as part of the consultation process the government is undertaking regarding the establishment of a federal judicial commission.
The paper noted that the removal of judges had a high threshold.
“Security of tenure is an important safeguard of judicial independence, which is vital to upholding the rule of law as it allows judges the ‘freedom to decide cases according to law, without fearing reprisal’,” according to the paper.
“Section 72 of the constitution provides that the only means by which a federal judge may be removed from office is ‘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’.
“This high threshold for removal from office is to ensure that judges are free from political interference.”
No federal court judge has been removed from office under the constitution, nor has the high court been called upon to interpret the conditions for removal, the paper notes.
The only time the process for parliamentary consideration of the removal of a judge occurred was in the 1980s, in relation to former high court justice Lionel Murphy. The process was not completed, as it was later revealed Murphy was suffering from terminal cancer.
The paper notes that few other complaints have been subject to investigation and consideration of whether the behaviour might engage section 72 of the constitution.
The Judicial Misbehaviour and Incapacity Act also allows parliament to establish independent parliamentary commissions to investigate allegations of misbehaviour or incapacity of a federal judge.
“The functions of a commission under the Judicial Misbehaviour and Incapacity Act are to investigate a specified allegation and report to the parliament on the commission’s opinion of whether or not there is evidence that would enable the houses of the parliament to conclude that the alleged misbehaviour or incapacity is proved,” according to the paper.
“A parliamentary commission may not compel a member of the judiciary to give evidence or provide documents. However, it may hold hearings, obtain documents and require the attendance of other individuals.
“A commission does not make recommendations or indicate to the parliament what standard of proof should be applied. It is properly a matter for the parliament to conclude whether misbehaviour or incapacity has been proved.”
