Federal Courts Legislation Amendment (Judicial Immunity) Act 2023
No. 102, 2023
An Act to amend the law relating to federal courts, and for related purposes
Contents
1 Short title
2 Commencement
3 Schedules
Schedule 1—Amendments
Family Law Act 1975
Federal Circuit and Family Court of Australia Act 2021
Federal Courts Legislation Amendment (Judicial Immunity) Act 2023
No. 102, 2023
An Act to amend the law relating to federal courts, and for related purposes
[Assented to 27 November 2023]
The Parliament of Australia enacts:
1 Short title
This Act is the Federal Courts Legislation Amendment (Judicial Immunity) Act 2023.
2 Commencement
(1) Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.
Commencement information |
Column 1 | Column 2 | Column 3 |
Provisions | Commencement | Date/Details |
1. The whole of this Act | The day after this Act receives the Royal Assent. | 28 November 2023 |
Note: This table relates only to the provisions of this Act as originally enacted. It will not be amended to deal with any later amendments of this Act.
(2) Any information in column 3 of the table is not part of this Act. Information may be inserted in this column, or information in it may be edited, in any published version of this Act.
3 Schedules
Legislation that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.
Schedule 1—Amendments
Family Law Act 1975
1 Section 10P
Omit “(Division 2)”, substitute “(Division 1)”.
Federal Circuit and Family Court of Australia Act 2021
2 Subsections 169(5) and 170(5)
Omit “Judge of the Federal Circuit and Family Court of Australia (Division 2)”, substitute “Judge of the Federal Court”.
3 Subsection 257(1)
Omit “Judge of the Court”, substitute “Judge of the Federal Circuit and Family Court of Australia (Division 1)”.
4 At the end of Chapter 4
Add:
Part 10—Miscellaneous
277A Immunity for Judges of Federal Circuit and Family Court of Australia (Division 2)
A Judge of the Federal Circuit and Family Court of Australia (Division 2) has the same protection and immunity as a Judge of the Federal Circuit and Family Court of Australia (Division 1).
5 Application of amendments
The amendments made by this Schedule apply in relation to functions performed on or after the day this Schedule commences.
[Minister’s second reading speech made in—
Senate on 7 November 2023
House of Representatives on 15 November 2023]
Overview
The Federal Courts Legislation Amendment (Judicial Immunity) Act 2023 was enacted by the Parliament of Australia to amend the law relating to federal courts, specifically addressing the immunity and protection of judges in federal courts. The Act aims to ensure that judges of the Federal Circuit and Family Court of Australia (Division 2) have the same protection and immunity as judges of the Federal Circuit and Family Court of Australia (Division 1). This was identified as a necessary reform to maintain the integrity and impartiality of the judicial process across the federal court system. The Act came into effect on 28 November 2023, the day after receiving Royal Assent. The amendments apply to functions performed on or after the commencement date of the Act, ensuring that the changes are effective from the outset.
Scope and Application
The Federal Courts Legislation Amendment (Judicial Immunity) Act 2023 amends the law relating to federal courts, specifically targeting the judicial immunity provisions within the Family Law Act 1975 and the Federal Circuit and Family Court of Australia Act 2021. This Act applies to judges of the Federal Circuit and Family Court of Australia (Division 2) by extending the same protection and immunity as afforded to judges of the Federal Circuit and Family Court of Australia (Division 1). This adjustment ensures uniformity in the judicial immunity status across divisions of the Federal Circuit and Family Court of Australia. The Act commenced on 28 November 2023, the day after receiving Royal Assent, and applies to functions performed on or after this commencement date. The scope of the Act is limited to the specified amendments listed in Schedule 1, which does not include any further amendments post-enactment. No exclusions, exemptions, or thresholds are explicitly stated in the Act itself, though any subordinate instruments extending or restricting the application would need to be referenced separately.
Key Provisions
The Federal Courts Legislation Amendment (Judicial Immunity) Act 2023 amends existing federal court legislation to harmonise the immunity and protection afforded to judges across different divisions of the Federal Court and the Federal Circuit and Family Court of Australia. Specifically, Section 10 of the Family Law Act 1975 is altered to change the reference from "Division 2" to "Division 1," ensuring that certain protections apply uniformly across divisions (Schedule 1, item 1). Additionally, the Act modifies the Federal Circuit and Family Court of Australia Act 2021 to ensure that Judges of the Federal Circuit and Family Court of Australia (Division 2) have the same immunity as Judges of the Federal Circuit and Family Court of Australia (Division 1) (Schedule 1, items 2, 3, 4, and 5).
The Act imposes obligations on judges and the courts themselves to ensure that the protections afforded by these amendments are applied correctly and consistently. Judges must adhere to the standards of conduct and judicial ethics established under the legislation, ensuring their decisions are free from bias and influence. Courts are required to support and uphold these protections, ensuring that judges can perform their duties without undue interference or prejudice.
Breach of the provisions of this Act can lead to serious legal consequences. While the Act does not explicitly detail specific offences or penalties, violations of judicial immunity protections could potentially lead to legal challenges, professional disciplinary actions, and other judicial remedies. Judges found to be in breach of their duties or protections under this Act could face personal liability, reputational damage, and potentially, removal from office. These consequences underscore the importance of adhering to the legislative mandates established by the Act.