In this part of the electoral cycle, it might be asking too much to expect the nation’s leaders to stop throwing mud and provide a sensible response to Salvatore Vasta’s victory in the High Court.
Remember him? Vasta is the Federal Circuit Court judge who jailed an innocent man, avoided civil liability for this decision, suffered no adverse consequences and is still on the bench.
Whoever forms government after the federal election should waste no time in addressing the issues that have been laid bare by this case.
Three things need to happen – not simply to address one clear instance of injustice, but to address a systemic problem: declining trust in the courts.
The first step is the most urgent: the next Attorney-General needs to make an ex gratia payment to the man who was wrongly jailed by Vasta after a hearing that was accepted by the High Court as being a parody of proper process.
Once that is done, the next government needs to close an unfortunate gap in the justice system that means federal judges like Vasta – unlike their counterparts in most states – are not subject to oversight by a judicial commission.
The final step is to fix the ineffective national system for teaching civics and citizenship so it presents the courts for what they are – the true guardians of our liberties and the last line of defence against any arbitrary government.
All three steps are needed if this country’s leaders wish to overcome the adverse public impact of the Vasta case and arrest the decline in trust in the courts. That decline is outlined in the latest report of the National Assessment Program of Civics and Citizenship.
For more than a decade this program has found that trust in the courts consistently falls once school students move from primary school to year 10 at high school.
Last year’s survey results show that this declining trust in the courts is accelerating.
The civics and citizenship survey found that the proportion of year 10 students who trusted the courts was just 64 per cent – down from 70 per cent in 2019.
That six point decline is the second biggest drop in confidence among all the national institutions covered by NAP-CC report.
The only institution losing trust faster was the police, with a rating among year 10 students that crashed from 74 per cent in 2019 to just 64 per cent last year.
To put that into perspective, the courts and the police are now just ahead of society’s least trusted institutions whose low ratings have barely changed since 2010.
The NAP-CC survey found that state parliaments and local governments are trusted by just 57 per cent of year 10 students, federal parliament is trusted by 56 per cent, political parties by 43 per cent, the media by 33 per cent and social media by 24 per cent.
If trust in the courts is to be restored, all three steps are necessary: compensation for Vasta’s innocent victim, establishment of a national judicial commission, and truly effective civics education that explains the importance of the judiciary to ordinary people.
Compensating Vasta’s victim might cost taxpayers more than $300,000 but it’s justified.
Just consider what happened to this victim who is referred to in court documents as “Mr Stradford”.
Once he was hauled out of the court on Vasta’s orders he spent six days in prison before the judge stayed his own orders and accepted that he may have been in error.
Six days might not sound like much. But consider the circumstances.
Stradford’s submissions say he spent most of that time in a cell at Brisbane’s Roma Street Watch House with an inmate who told him he was “coming off ice and heroin” and had been “in and out of mental health wards”.
His cellmate, according to the submissions, “had no regard for personal hygiene and did not use toilet paper”.
On their first night together, Stradford awoke to find his cellmate’s hands around his throat.
Stradford tried to sue Vasta, the Commonwealth and everyone else who had a role in his incarceration.
But he failed at the last hurdle when the High Court, quite properly, upheld the doctrine of judicial immunity and explained that it protects not just acts done as part of the judicial function, but acts done as part of the purported exercise of the judicial function.
The court ruled for the immunity, not for Vasta whose errors were denounced in the leading judgement as egregious and many.
The immunity serves the public interest in much the same way as parliamentary privilege. But without an addition to this country’s institutional infrastructure – and payment of compensation – this case shows the immunity can give rise to injustice.
Parliament has methods of policing itself to prevent and punish abuse of parliamentary privilege. A federal judicial commission would achieve much the same for the judiciary.
At the moment, there is no federal institution charged with considering complaints about judicial misconduct, running investigations and preparing reports on the most serious incidents that can be laid before parliament.
Under our system of governance, parliament alone has the constitutional power to remove federal judges and only on the grounds of proved misbehaviour or incapacity.
A judicial commission would streamline that process and serve not just the interests of the public, but of the judiciary. It would provide a way of ridding the bench of problems.
The next government should ensure that this is the lasting legacy of Judge Salvatore Vasta.
