This week’s criticism of Judge Salvatore Vasta by the Federal Court has brought the issue of judicial immunity to the fore, and intensified the push for a Federal Judicial Commission.
Judge Vasta was slammed on Wednesday for his unlawful imprisonment of a husband during a property dispute in 2018, with the father of two awarded more than $300,000 in damages by the Federal Court.
Justice Wigney was scathing in his assessment of Judge Vasta’s conduct, calling the result a “gross miscarriage of justice” and ruling the Queensland judge was personally liable for $50,000.
Judge Vasta has been the subject of a string of complaints in recent years. In 2019, he was ordered by the Federal Circuit Court to take a break from duties and receive mentoring.
Most Australian states and territories have an independent commission to handle complaints against judicial officers but there is no equivalent body for federal judges.
Law Council of Australia (LCA) president Luke Murphy said the decision highlighted the need for legislative certainty with respect to the Federal Court 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,” Mr 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.”
Mr Murphy said judicial immunity ensured a judge could exercise their functions based on an application of the law, without external influences such as a fear of personal liability after the fact, but there were also “well-established limits to this immunity”.
Mr Murphy re-iterated the LCA’s support 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,” he said.
The Australian Bar Association (ABA) also weighed in, saying it was concerned about implications of this week’s Federal Court decision for judicial immunity.
ABA president Peter Dunning KC said the decision “raises potentially significant issues” for the work of judges of inferior courts.
“Without in any way commenting on the content of the judgment itself, or diminishing the impact of the events on the Applicant, 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 judgment is appealed,” Mr Dunning said.
“Judicial immunity is an important institutional requirement in facilitating the fearless administration of justice by judges across Australia.
“When occasions arise, such as the present, that in a significant way impact the understanding of its boundaries, it is always appropriate to consider whether the immunity remains appropriately calibrated to securing that fearless independence.”
The Australian Law Reform Commission recommended the formation of a federal judicial commission in its 2021 report Without Fear or Favour: Judicial Impartiality and the Law on Bias.
In October last year, the Federal Government announced it was considering the merits and design of such a body to investigate complaints about federal judges.
Its discussion paper, Scoping the Establishment of a Federal Judicial Commission, was released in January and received 57 submissions.