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No Immunity according to Chief Justice Gleeson of the High Court

No Immunity according to Chief Justice Gleeson of the High Court

There have been many papers regarding Judicial accountability, misbehaviour or misconduct as some would call it. Behaviour in Contempt for an Oath or Undertaking given to a Court is an understatement when claimed as misbehaviour or misconduct in my book but the I am a common person not availed of the sensitivities of the finer definitions of the words, Legal Eagles place on those words.



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Note these are extracts only in support of my final question and position at the bottom of this writing.

I find it helpful to consider issues of judicial misconduct and judicial incompetence from a rule of law perspective. The rule of law requires that laws are administered fairly, rationally, predictably, consistently and impartially. Judicial misconduct and judicial incompetence are incompatible with each of these objectives.

Fairness requires reasonable consideration of the rights and duties asserted. Rationality requires a reasoned relationship between the rights and duties and the outcome. Predictability requires a process by which the outcome is related to the original rights and duties. Consistency requires similar cases to lead to similar results. Impartiality requires the decision-maker to be indifferent to the outcome. Judicial misconduct, particularly improper external influence, distorts all of these objectives. …

I will deal with the relevant issues under three headings. First, judicial corruption, secondly, standards of conduct and, thirdly, mechanisms for dealing with misconduct.

Judicial Corruption

In an article published a few years ago Judge Clifford Wallace stated that "no country is completely free of corruption"[2]. It is not clear whether he intended to suggest that no judiciary is entirely free of corruption. I would contest that proposition. However, there is no doubt that judicial corruption does exist in many jurisdictions and in some places is endemic.

Judge Wallace went on to state that the way to protect judicial independence whilst dealing with the problem of corruption, is to have a permanent organisation of judicial peers to investigate such allegations. That may be essential in some nations. In others there are limits to the applicability of this approach. It may be seen to conflict with the principle of equality before the law.

It is trite to observe that judges, like everyone else in the community, are subject to the law. An Australian who contravenes the law by committing crimes, including offences of corruption, is subject to the normal processes of the law. An allegation against a judge of this character is investigated, and subject to trial, in the same manner as an allegation of contravention of the same law by any citizen. What, if any, implications such conduct has on his or her continuation as a judge is a different matter. …

Standards of Conduct

Deciding how to deal with criminal conduct including bribery and corruption is often more clear cut than dealing with less serious forms of inappropriate conduct by judges. Chief Justice Gleeson in an address last year said:

"As a rule, the more serious the complaint, the easier it is to devise means to deal with it. And the converse is true. If a judge is alleged to have committed a crime, then the matter is investigated and tried in the same manner as any other allegation of crime against the citizen. If a judge is alleged to be suffering such incapacity as warrants removal, the procedures to be followed are clear. The difficult cases tend to be those in which the complaint, even if made out, would not justify removal. The complainant is likely to assume there must be some other sanction available. It can be difficult to satisfy an aggrieved person whose complaint is justified, but who sees no form of sanction visited upon the judicial officer involved. False expectations can be created.[7]"

As Chief Justice Gleeson suggests, difficult issues arise when attention is focused on standards of judicial conduct other than conduct for which legislation of general application exists. This is a matter to which much attention has been devoted in many jurisdictions, particularly over the course of the last few decades. The product of this deliberation has often taken the form of a Code of Judicial Conduct or of Judicial Ethics…

Chief Justice Gleeson [of the High Court] in an address last year[2002] said: If a judge is alleged to have committed a crime, then the matter is investigated and tried in the same manner as any other allegation of crime against the citizen.

So is Bryant CJ and Kirby J correct in their granting or refusal to remove, as the case may be, Bryant CJ's Judicial Immunity. Or has Gleeson CJ, the Chief Justice of our highest Court, forgotten judges are immune from prosecution for crimes. Worst still did the Australian Federal Police (AFP) err with their claims to me, the allegations of crimes is a matter for the FamCA not them in contradiction to Gleeson CJ with;  a judge is alleged to have committed a crime, then the matter is investigated and tried?

Is it the DUTY of the AFP to investigate criminal behaviour of our Judges when a judge is alleged to have committed a crime and the evidence of such is handed to them on a plater?

Sir Anthony Mason AC KBE, formerly Chief Justice of Australia now Arthur Goodhart Professor in Legal Science, Cambridge University and National Fellow, Australian National University; writer of "Australian provisions governing the appointment and removal of judges" (why was this link disabled)<span%20style= (why was this link disabled)"At common law a judge held his office at the pleasure of the Crown. … The Act of Settlement altered the common law and enacted that judges' commissions should be during good behaviour. The qualification as to removal by the Crown on an address from both houses was added. The object of all this was to protect the judges, not from parliament, but from the arbitrary and uncontrolled discretion of the Crown. The legal result was that the Crown could only interfere with a judge either (1) for misbehaviour, or (2) if the house of parliament desired it. This obviously did not decrease the control of parliament …"

Accordingly, under s 77, it would seem that parliament can remove a judge for any reason it chooses. There is also the possibility that the Crown could remove, without an address, on the ground that misbehaviour itself terminated a judge's commission. But in that event, the issue of misbehaviour would be justiciable.

So is there Judicial Immunity from criminal offences alleged or not? I say NO

Where are the Dominion (series) of Acts referred to in this post?
You are still confusing Judicial misconduct, errors and any bias with the Crimes Acts

No Judge or Magistrate is above any 'Crimes Act' where the crime (or illegal action) is specified. In NSW we have the Justice Shaw incident plus the ongoing saga of Pat O'Shane

Because someone has acted outside the bounds of office and has not shown impartiality does not make the matter a criminal offence, it may make it a disciplinary offence. However if a Judge has acted within the bounds of 'discretion' allowed by his jurisdiction it does not make it a crime. There is a great difference between a 'moral' crime and a 'legal' crime in the Court scenario

Many professions are protected by Acts of Immunity to stop cases being brought against them by 'doing their job'

You are still referring to Acts that were part of the Dominion (series) of Acts enacted during WWII that protected Federal employees from being prosecuted from certain actions.

Executive Member of SRL-Resources, the Family Law People on this site (look for the Avatars) Be mindful what you post in public areas.á
This was rushed the first time 10-12-07, hope this helps your understanding of where I am going an the difference between what has occurred in my matters making them criminal rather than moral.

It is demonstrated intent and seriousness of the moral crime that makes the crime criminal. The undoing of the crime also diminishes the criminal intent so Bias is applicable rather than the crime.   

What "Dominion (series) of Acts enacted during WWII" are you talking about?

I am talking about the Criminal Code (Code), as referred to at s.7.8 of the Family Law Act.

Chapter 2 of the Code deals with "General principles of criminal responsibility".

Chapter 7 with "The proper administration of Government" s142.2 of the Code is within Chapter 7 of the Code and is in no way a Dominion (series) of Acts.

S.142.2 of the Code is the crime of BIAS when committed but the term BIAS is used to sidestep the crime by the claim of BIAS rather than enforcement of the Law of the Commonwealth. That's not to say all counts of Bias are committed with criminal intent. However, were it is apparent from the record and ongoing behaviour the intent is criminal, the crime is committed, and the defence of BIAS can no longer be maintained. Because BIAS is more often than not a defence of diminished intent to commit the crime committed, or am I wrong?

Bias is an appearance or admission a detriment as been caused, benefit given, due to an unwarranted and/or unlawful dislike(detriment), or like (benefit) is demonstrated by the judge for one party in preference to the other, or am I wrong?

A detriment caused can not be caused unless a judge demonstrates a negative bias against a party and a negative bias can not be established unless there is a detriment caused. It is the intent and amount of the detriment caused and the willingness of the judge to undo the detriment caused or benefit given that takes Bias to criminal intent.

Part III of the Crimes Act is the other Act of crimes I have citied were s.43 is "Attempting to pervert justice " and s.42 "Conspiracy to defeat justice".

Are you trying to confuse the issues with false claims of not applicable Law or what?

Is your claim to the Dominion (series) of Acts in reference to Sir Anthony Mason AC KBE. Sir Anthony is discussing the evolving of the Law applicable to the judiciary and parliament and the Constitution regarding s.77 as applicable over s.72 of the Constitution. S.72 of the Constitution is where the "Employment Condition of Tenure" of "Proved Misbehaviour" is first found and creates a requirement for Judges to be able to have "Misconduct" provable or disproved for their continuing as a Judge.

Is "the Law applicable to the judiciary" not relevant to Family Law by the enforceability of the Laws made by Parliament due to Judges of the FamCA are above the Law and thereby not accountable for their unlawful actions due to Immunity?

Is the commission of an action that amounts to a breach/contravention of an Oath to the Court or Law of the Parliament "Misconduct" or "Misconduct" defeated by an Immunity?

The Merriam-Webster's Dictionary of Law : Main Entry: misĚconĚduct:intentional or wanton wrongful but usually not criminal behaviour: as (a) :deliberate or wanton violation of standards of conduct by a government official.

"Usually not criminal behaviour" does not mean "criminal behaviour" is not "Misconduct". However, does mean criminal behaviour is not required to be proven for "Misconduct to be proven". Nevertheless, since when has criminal behaviour been other than a violation of standards of conduct by a government official thereby requiring a hearing to determine if the conduct was misconduct or criminal?

Are the major complaints and requests for help (soapboxes) on this forum;

(1) About uncited Judges who appear to use one rule of law for woman and another for men?

(2) About those Judges that appear to abandon the Law of "What is in the Best Interests of the Child" and "the Overall Rights and Needs of the child" for the wants or benefits of woman or a party with a disregard for "the Law of the proper administration of justice"?

(3) and so on.

How do we cause Judges to stop ignoring the Laws of Parliament in preference for their own personal likes, dislikes, wants, wishes and beliefs for the directions of Justice they impose? These in contradiction to the Laws of Parliament, the Constitution bestowed on Parliament the power to create, so Judges could not do what they are doing in the Family Court.

That is, how do we stop those judges getting away with "Other Than the Proper Administration of Justice" by their implementation of their own personal likes, dislikes, wants, wishes and beliefs?

How do you stop a child from taking a chocolate bar shortly before dinner so they will eat their dinner? First, you tell them not to, hence the Law of Bias telling judges not to show favour or menace to a party. The child still takes that chocolate therefore punished by no dessert. A Judge is punished by a Writ or Order of Prohibition and the Law of benefit and/or detriment is overlooked because any harm caused is undone due to a rehearing is often Ordered at the same time the prohibition is Ordered. Were a judge has integrity that prohibition is made on their own instigation. Alternatively, as a last resort made by another Judge or sought to be made of the first judge, as the CJ had to do in my case, hence s.34 of the Act for the making of such Writs/Orders.

In my case the Judge had first Ordered, he is the Judge to determine all matters of our case, which included "Leave" for an extension of time to file an appeal of his own Orders. "Leave" to prosecute "Contempt of Consent Orders" that Judge had prevented the Orders acted in Contempt of, from being read in his Court, and the prosecution of other Contempts committed in his Court by the mother "Stayed" rather than transferred to another Judge.  

Section 43 of the Crimes Act is a crime created by an Act of the Parliament to deal with all persons, including Judges who pursuant to the words of s.43 of the Crimes Act;

  "Attempting to pervert justice:  (1) Any person who attempts, in any way not specially defined in this Act, to obstruct, prevent, pervert, or defeat, the course of justice in relation to the judicial power of the Commonwealth, shall be guilty of an offence. Penalty:  Imprisonment for 5 years".

The power to prosecution any "Contempt of Court" is a "judicial power of the Commonwealth" and that power is created by s.35 of the Family Law Act.

Thereby any "obstruct, prevent, pervert, or defeat, the course of" a prosecution of a "Contempt of Court" including a "Leave Application" to start a case without "justice cause" is an "attempt to pervert justice" is it not?

Where evidence is presented by affidavit, evidence that can only be brought to court by an instruction (subpoena) of the Court, is available to be presented and what that evidence is due to the person making the affidavit is witness to the evidence. The "just cause" for "Leave" is established on probability due to evidence give supports the evidence exists for the matter to be justiciable.

Therefore the refusal to "Grant" or "Dismiss" the "Leave Application" is an obstruction to the "judicial power of the Commonwealth" to prosecute a "Law of the Commonwealth" of "Contempt of Court". Thereby an offence of "an attempt to pervert justice" is it not?

Where is the Dominion Law in any of what I have just put to you?

What of the proper administration of justice is not relevant to Family Law and the Courts/Judges?

Is it not, the larges number of Guest posts on this site, are to do with the proper administration of justice in the FamCA. Or should I say, the appearance of "other than the proper administration of justice" in the FamCA by the denial a father or parent, there are woman on this site too, a justiciable and justifiable solution that is in the "Best Interest and Rights of the Child" by a demonstration of one parties wants over another parties rights.

Relocation and prevention of contact is a benefit (s.142.2 of the Code) of WANT by one party, in most cases I know of, over the detriment (s.142.2 of the Code) of a right of a child to have a continuing close relationship with both parents and both parents to have a say and meaningful relationship with the child.

I note the High Court "Special Leave to Appeal" is hearing matters from numbers M66 to M126 of 2007, my matter awaiting their Honours "Leave to file" on the other party is matter between M72 and M78. As I am a person representing himself 2 judges are required to look at my application and determine if the issues of Writs (pursuant to s34 of the Family Law Act) and Contempt applications are justiciable. If they find they are, then I can serve the "Special Leave Application" on the other party and somewhere down the track a return date could be given. Probably after Mushin J has retired to diminish the ability to deal with him for issues arising from the issues I have put to the High Court.

Yes, my High Court matter is relevant to this site because it deals with when a Judge of the FamCA can prevent a "Contempt of Court Application" by a party (seeking to exercise a Judicial Power of the Commonwealth to determine if a Contempt has been committed). Plus the Law, Right and exercising of a Judicial Power of the Commonwealth created by s.34 of the Act for the Writs of Mandamus and Prohibition/Certiorari in the FamCA. Furthermore the FamCA to deal with State Orders that fall within s.68B and s.114AB of the Act by the power created by s.34 of the Act.

These State Orders were obtained by reliance on s.68B FamCA Orders sought in breach of s.114 (2) of the Act. That is, Ex-parte interim s.68B State Orders were in place when s.68B Orders were sought in the FamCA and it is the s.68B Orders of the FamCA that the s.68B State Orders are firstly reliant on, then the false claims of evidence for the now uncontested FamCA s.68B   (Excuse the use of s.68B for IO and AVOs which to me are 1 in the same.)

Yes, a complex matter of cause the issues to become uncontested then the Judge can do what he likes and grant the woman her WANTS with a total disregard for the detriments caused to the Child.

These issues have a high impact on the behaviour of FamCA judges and therefore are very relevant to this site.

The fact I give intros to the issues and expand on those issues if I see a need to, by someone showing a lack of comprehension for the Law I am pursuing or a misunderstanding the details of my matters that have the potential of causing the injustices done by FamCA Judges to be prevented in the future.

That is my issues, if pursued and allowed to be determined, will cause FamCA and the like judiciary to look at their behaviour and application of the administration of justice to ensure they are not acting in breach of the Laws of the Parliament first then determine if they can justify their determination.

At present these judiciary are looking at if they can justify their determination (a child can only be happy if the mother is happy) and ignoring the Law of the Parliament they are first bound too.     

Last edit: by No-Justice

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