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Burgess, Craig --- "Criminial Immunity: Judicial Immunity - Right or Wrong?" [2006] AltLawJl 11; (2006) 31(1) Alternative Law Journal 39

  • CRIMINAL IMMUNITY: Judicial immunity — right or wrong?
    Judicial immunity — right or wrong?

    CRAIG BURGESS[*] considers whether judges should continue to enjoy immunity from criminal prosecution.

    The High Court’s recent decision to strike down criminal convictions against former Queensland chief magistrate, Di Fingleton, because by statute she was entitled to immunity from prosecution has excited much public debate.[1]

    As the Dean of Law at Sydney University, Professor Ron McCallum, said in The Australian recently, not even the Prime Minister enjoys immunity from criminal liability.[2]

    It is a fair question: why should those in charge of our courts enjoy a privilege the rest of the community is denied?

    Where does judicial immunity come from?

    To answer the question one must delve back into history where it has been common law for more than 400 years that no action is maintainable against a judge for anything said or done in the exercise of a jurisdiction. The general principle is as stated by Lord Denning MR in Sirros v Moore:

    Ever since the year 1613, if not before, it has been accepted in our law that no action is maintainable against a judge for anything said or done by him in the exercise of a jurisdiction which belongs to him.[3]


    In Queensland the immunity is provided by s 30 of the Queensland Criminal Code of 1899, which provides:

    Except as expressly provided by this Code, a judicial officer is not criminally responsible for anything done or omitted to be done by the judicial officer in the exercise of the officer’s judicial function, although the act done is in excess of the officer’s judicial authority.

    This immunity, so High Court Chief Justice Murray Gleeson said in Fingleton v The Queen[4] is conferred not as a perquisite of judicial office for the private advantage of judges, but for the benefit of the public whose interest it is that the judges should be at liberty to exercise their functions with independence and without fear of consequences.

    Most fair minded people would agree it could hardly be said to be in the public interest for unsatisfied litigants to hound a judge with litigation charging malice or corruption. Imposing such a burden on judges would contribute not to principled and fearless decision-making but to intimidation.

    The principle of ‘finality’

    There is also the ‘principle of finality’. Courts, as a branch of government, are required to finally resolve legal disputes and claims. The ‘principle of finality’ allows court decisions to be subject to appeal to a higher court but otherwise, except in a few narrowly defined exceptions, it prohibits the re-opening of court decisions and the re-litigation of disputes and claims. Allowing litigants to sue judges for negligence would undermine the principle of finality by allowing issues decided by the courts to be relitigated other than by way of appeal.

    One can only speculate about the added burden on an already over-stretched legal system extra litigation would impose.

    Judicial immunity however, does not mean judges are unaccountable. Judges are required, subject to closely confined exceptions, to work in public, and to give reasons for their decisions. Their decisions are subject to appellate review, which is also conducted openly. The ultimate sanction for judicial misconduct is removal from office on an address of Parliament. A situation which occurred for the first time in Australia in the Queensland Parliament in 1989 when Judge Angelo Vasta was removed from office.

    Undeniably immunity comes at a price. But it is a price our society has been prepared to pay. That price is the immunity provided by law.

    Therefore it is generally agreed immunity from negligence and defamation for actions in court is appropriate because the justice system could be undermined if judges operated under a constant fear of liability.

    Administrative immunity

    But why should this immunity extend to administrative functions? Herein lies a problem in defining what constitutes a judicial or an administrative act.

    For instance, is the power for a magistrate to issue a search warrant an administrative or judicial act? Or a decision to extend the prescribed detention period for the purpose of questioning a suspect?

    For the purposes of the argument say the above two examples were defined as purely administrative acts and therefore did not attract judicial immunity. Would the interests of justice best be served if magistrates were fearful of exercising these powers for fear of a possible suit against them by the subjects of these acts?

    It was these concerns expressed by Queensland judges that led to the amendment of the Magistrates Act 1991 (Qld) to extend the immunity to cover the exercise of administrative actions.

    The Queensland Parliament enacted, and also extended, that immunity granted by s 30 of the Criminal Code through an amendment to the Magistrates Act 1991(Qld) six years ago. Section 21A of that Act provides:

    A magistrate has, in the performance or exercise of an administrative function or power conferred on the magistrate under an Act, the same protection and immunity as a magistrate has in a judicial proceeding in a Magistrates Court.

    Nevertheless, perhaps it is time for a national debate on whether judges should continue to enjoy immunity from criminal prosecution. Another suggestion is for the establishment of a network of judicial commissions to ensure judges are accountable for their actions.

    United Kingdom

    The UK is to introduce a new Office for Judicial Complaints in 2006 to deal with allegations about judges’ personal conduct. Significantly though judicial immunity will not be disturbed because complaints about the way judges conduct court proceedings will be outside the office’s ambit.[5]

    In conclusion, one should be wary of the adage that hard cases make bad law and overturning a system that seemingly has worked well for centuries because of an isolated incident could be an over-reaction fraught with danger.

    [*] CRAIG BURGESS is a solicitor and teaches media law and ethics at the University of Southern Queensland.

    © 2006 Craig Burgess


    [1] Fingleton v The Queen [2005] HCA 34. [Ms Fingleton appealed against a conviction for retaliating against a witness. She was convicted in June 2002 of the charge after threatening to demote coordinating magistrate Basil Gribbin. She was sentenced to a year in jail but that was reduced to six months on appeal.]

    [2] Chris Merritt, ‘Judicial immunity needs an overhaul’, The Australian (Sydney) 4 July 2005, <> at 05 July 2005.

    [3] Sirros v Moore [1975] QB 118, 132.

    [4] [2005] HCA 34, [38].

    [5] Grania Langdon-Brown, ‘Why Decision Against Naming Disciplined Judges is Just’ (2005) New Law Journal <> at 18 July 2005.

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