One Nation had a number of comments to make on the recent move to extend the judicial immunity received by Division 1 Federal Court Judges to Division 2 Judges.
Most people can’t afford to go to court in the first place, let alone stump up money again for an appeal if the court gets it wrong.
Senator Hanson and I raised a number of issues about how people access a remedy given this bill would block off one way to get justice.
I’m interested in your thoughts on the questions we raised and the minister’s responses.
Transcript
Senator HANSON: 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.
Senator WATT: 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.
In Committee
Bill—by leave—taken as a whole.
Senator HANSON: Minister, under this bill, who would be protected by this immunity?
Senator CHISHOLM: The measure would provide that a judge of division 2 of the Federal Circuit and Family Court of Australia has the same immunity as a judge of division 1 of the Federal Circuit and Family Court of Australia.
Senator HANSON: Would you please explain what immunity is given to the judges of division 1 of the family court.
Senator CHISHOLM: Case law suggests that judicial immunity applies to judges of inferior courts more narrowly than it does to their superior court counterparts. This has created uncertainty for litigants and for judges of the Federal Circuit and Family Court division 2. The bill would minimise the risk of vexatious litigation aimed inappropriately at division 2 judges from those who are dissatisfied with the outcomes of their decisions. This bill would also support the underlying aim of the doctrine of judicial immunity by enabling division 2 judges to discharge their judicial functions impartially, fearlessly and in accordance with their assessment of the facts and their understanding of the law without undue influence or the threat of being sued.
Senator HANSON: If a person was not happy with a decision of the courts and if you’d allowed immunity to that judge, what course of action would the person have?
Senator CHISHOLM: The appeal process.
Senator HANSON: Through the appeal process, you would talk about the decision that judges have brought down. As I said in my remarks, a lot of these people are at their wit’s end, and they don’t have any more money to throw at solicitors to actually put their case forward. What other process could there possibly be for them if they feel that they’ve already spent years waiting for the courts to make the decision? A lot of the parents that I’ve spoken to have said that they feel that there is a bias against them in the courts because of who they are and because of lies that have been told.
My concern is that I’ve spoken to a lot of parents who go to the courts and give their evidence, and in the court system there is perjury, yet they don’t feel that the person who is going against them in their case—their ex-partner, ex-wife or whatever—is being held accountable. Lies are being told—and, I’ve got to say, by men as well. Lies are told in court. There’s no accountability in the court system. There’s no accountability for perjury. The judges don’t pull them up for perjury. Why are we then giving the judges immunity when the judges themselves will not adhere to the rules of the court, where perjury is not allowed?
Senator CHISHOLM: The Federal Court of Australia Act 1976 and the FCFCOA Act empower the heads of jurisdiction to consider, investigate and handle complaints about Federal Court and FCFCOA judges.
Senator ROBERTS: What does that mean?
Senator CHISHOLM: I’ve answered the question.
Senator ROBERTS: Could you please translate that into everyday language.
Senator HANSON: Senator Roberts asked a very direct question of the minister with regard to an explanation of the statement that he just made. In light of that, please make the statement in layman’s terms so that even I can understand it, if you would please. I would like to understand what you’ve just said in this chamber. Can you please explain?
Senator CHISHOLM: As I said, the Federal Court of Australia Act 1976 and the FCFCOA Act empower the heads of jurisdiction to consider, investigate and handle complaints about Federal Court and FCFCOA judges. So that’s the additional process. Obviously they’ve got the appeals process that someone could be entitled to pursue legally as well. You’re asking about what additional measures there were. That was the additional measure.
Senator HANSON: If someone feels that they’ve been wrongly treated in the court system, that someone has perjured them as a witness on the stand or that they’ve perjured themselves, what course of action do they have if the judge will not take that into consideration? How does that respondent deal with it? If the judge can’t be held to account for the decisions that they make, you’re basically giving them complete immunity if they make the wrong decisions, such as when they haven’t run their court correctly and haven’t pulled up anyone for perjury.
Senator CHISHOLM: It’s the same answer as the one before.
Senator ROBERTS: How many times have the additional measures been used?
Senator CHISHOLM: I don’t know. I’m happy to see if I can take advice on that and come back to you.
Senator ROBERTS: My concern is the legal system is a closed system. I can give you an example to labour the point: someone has been trying to get justice for nine years. He’s been thwarted by the plaintiff, who is a very large corporation, and thwarted by the lawyers representing him and the major corporation. This is a closed system, a closed club. How can people be reassured that this will not lead to less openness?
Senator CHISHOLM: The courts act independently.
Senator HANSON: What we have a big problem with in our society is the time judges take handing down their decisions. It can actually be as long as one year, two years or even longer before they hand down their decision. By you giving them immunity—meaning someone can’t sue them when for it—where does it leave these people who are so frustrated with these judges that have taken so long to hand down their decisions? What recourse do they have? What can these people do while waiting for these long answers?
Senator CHISHOLM: The standard complaints process would enable them to complain to the chief justice of that court.
Senator HANSON: I won’t keep this going. I have my grave concerns about this bill. I think you’re giving immunity to judges when they need to be made accountable. I think I’ve made my comments quite strongly on that. My concern is for the general public—that they don’t have recourse anywhere. You’re shutting the gate on them. You’re not making these judges accountable to the public, and it’s a real shame. It’s a closed shop, and I hear that constantly.
People are distraught. They don’t know where to go. They turn to politicians. I tell them all the time that it’s a separation of power, that we can’t get involved in this and that they have to keep fighting on. Like I said, when I talk to people on the telephone or when I get called aside in a shopping centre or wherever I go, people tell me their stories of how they’ve been separated from their families, from their children. They’re distraught. They’re at the bones of their backside; they’ve got no more left in them. They’ve got no money. They’ve lost their houses, and this just goes on and on. Yet you’re in this chamber telling me that you’re going to give the judges immunity. Where’s the immunity for the public?
You passed further legislation just last week on the family law courts. You’re going to do more damage to the families there. What’s going to happen in child support? Who knows what you’re going to do with that one when you bring that bill before this parliament! I feel that the people of Australia haven’t been listened to. You don’t have the answers. Like I said, you’re just protecting the judges, who are in fear, who don’t want to be sued. How many judges have been sued? One. Therefore we must make sure that it doesn’t happen to another judge. Yet hundreds of thousands of people have been affected by the court system and what it’s done to the people of Australia.
I don’t believe this. You’re so quick to move to protect the judges from being sued but you don’t worry about the Australian people. You don’t worry about getting it right in your family bills and law bills that are being passed in this place. It’s a real shame, and I’m sure with the next one you pull up, the child support bill, you’ll be doing the same—slapping people in the face. Anyway, I’ve made my point here. I’m sure that the coalition and Labor will cuddle up beside each other on this bill again and pass it with no real oversight or thinking about what the public have to deal with now. One Nation will be opposing this.
Senator CHISHOLM: We don’t see judicial immunity as for the personal benefit of judges; we see it as something that protects everyone who comes to court by ensuring judges can make independent decisions free from external influence. That’s why we think this is important.
Senator ROBERTS: Minister, I acknowledge the fact that there are two sides to this. What Senator Hanson and I keep hearing are essentially two points. There’s a hell of a lot of regulation, and that regulation, wherever it’s immense, favours the big boys: the big corporations, the wealthy. The legal system is becoming less and less accessible to everyday Australians—along with housing. Is the government doing anything to make it more accessible?
Senator CHISHOLM: As I said, this is actually about judicial immunity. It protects everyone who comes to court by ensuring judges can make independent decisions free from external influence. We think that benefits everyone who comes before the court in this instance.
The TEMPORARY CHAIR (Senator Hughes): The question is that the bill stand as printed.
Bill agreed to.
Bill reported without amendments; report adopted.
