1 September 2023
All comments to be attributed to Law Council of Australia President, Mr Luke Murphy
The Law Council is aware of the judgment in the matter of Stradford (a pseudonym) v Judge Vasta  FCA 1020. We do not comment specifically on this decision. However, we make the following observations with respect to the personal liability of judicial officers exercising their judicial function.
An independent, impartial, honest and competent judiciary is integral to upholding the rule of law, strengthening public confidence and dispensing justice.
The common law and statutory rules of judicial immunity in Australia are intrinsically related to the principle of judicial independence, and critically important features of our legal system. Judicial immunity serves an important role in ensuring a judge can exercise his or her functions based on an application of the law, without external influences such as a fear of personal liability after the fact.
There are well-established limits to this immunity, most importantly where a judicial officer knowingly acts beyond their powers.
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. This recent decision highlights the particular need for further consideration to be given to legislative certainty with respect to the Federal Circuit and Family Court.
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 majority of Australia’s states and territories have an independent statutory mechanism to receive, manage and investigate complaints about judicial officers, and at the federal level the Australian Government is in the process of establishing of 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.
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