Michelle Benington discusses the balance between the focuses of our legal system, the power judges exercise, and the dignity of individuals.
Last week, as I was slowly progressing through my readings for Equality and Discrimination Law, I read the case of Bunning v Centacare. In this case, the complainant was unsuccessful in a discrimination claim against her employer after she was dismissed for polyamory. It is unlawful for an employer to discriminate against an employee on the basis of their sexual orientation. However, polyamory was classified as a behaviour, rather than an orientation, and hence fell outside the definition of ‘sexual orientation’ in the Sex Discrimination Act. I found this to be a very close-minded and problematic judgment, to the extent that I began researching the judge behind the decision. I quickly realised as I read about this judge that this was far from his only controversial decision.
His judgments have been described upon appeal as an ‘affront to justice’ and his behaviour as ‘aggressive, rude and overbearing.’ There was even a petition to have him removed from the federal court. The judge, for those that hadn’t already guessed, is Judge Salvatore Vasta, and the controversy that surrounds him demonstrates the need for greater judicial accountability.
Who is Judge Vasta?
Judge Vasta was a successful Crown prosecutor in Queensland for 24 years, where he garnered a reputation for himself as uncompromising and fierce in his work. He was appointed as a judge of the Federal Circuit Court in 2015 with some surrounding controversy, namely that his appointment was more to do with his political connections to the Liberal Party than his ability. In 2019, he became the subject of increased media scrutiny after a string of his decisions were heavily criticised in appeals. Findings by appeal courts included that he had made errors in law, denied procedural fairness and intimidated those who didn’t have a lawyer.
These controversies are canvassed in the ABC Background Briefing Podcast episode: “This judges decisions upended peoples’ lives. What can be done?”. Listening to the stories of three individuals who suffered as a result of Judge Vasta’s abuse of judicial power is incredibly distressing. In particular, one man was sentenced to 12 months in jail for contempt of court for not bringing certain documents to court as part of a property settlement. When this decision was overturned, the Full Court said “It is difficult to envisage a more profound or disturbing example of pre-judgement and denial of procedural fairness.” Other appeals to the Full Court have found Judge Vasta’s behaviour was “egregious for a judge” and that he was “frequently critical, dismissive, disparaging sarcastic.”
Despite these rebukes, it remains extremely unlikely that Judge Vasta will be removed, demonstrating that our judicial system is unable to hold judges accountable even when they appear unfit to hold their position.
What can be done?
In Principles of Public Law, students learn that the process for removing judges is far from easy. Judges are constitutionally protected from removal except by the Governor-General on an address from both Houses of Parliament, which has never happened. This is to protect the separation of powers, a laudable goal. But even when a judge has been found to have belittled and intimidated those that appear before them on multiple occasions, it is apparent that very little can be done.
In response to the controversy surrounding Judge Vasta, the Federal Circuit Court of Australia released a statement regarding the complaints procedure, which can be accessed here. The statement outlines that the Chief Judge has a limited set of powers to discipline judges if a complaint is made out. The Court noted Judge Vasta’s heavy workload and the additional pressure he faced in holding a senior administrative role, perhaps to explain some of his more heavily criticised judgments (he has now been removed from this administrative role). The former President of the Law Council of Australia, Arthur Moses, rightly questioned whether workload was an acceptable reason for providing a lack of procedural fairness. Individuals deserve to have their dignity upheld, regardless of how busy a particular judge may be.
The Law Council has made calls for a federal judicial commission that would mimic the state Judicial Commission in NSW to strength judicial accountability. Such a body would handle complaints in an impartial and transparent manner. However, the Attorney-General, Christian Porter, has said no such process is necessary as federal courts take complaints seriously. However, it is questionable whether these mechanisms are enough to do justice in the wake of such a blatant abuse of judicial power.
Because there are few ways to hold Judge Vasta accountable for his previous decisions, the man who was sentenced to a year in jail is now attempting to sue Judge Vasta. The doctrine of judicial immunity usually prevents such action and Shine Lawyers, who are representing the individual, noted they will need to prove exceptional circumstances in order to be successful.
Appealing a decision isn’t enough
Whatever action wronged individuals may seek to take, be it appealing a decision or suing the judge, these actions inevitably involve a great deal of time, expense, and emotional labour. The criticism of Judge Vasta has come from appeal courts, lawyers, and those that have stood before him, yet this is still not enough to have him removed.
When I was listening to the ABC podcast, the most upsetting part wasn’t actually Judge Vasta’s conduct itself. The utter terror the three interviewed individuals faced, along with the humiliation they suffered when being belittled or having judicial power exercised over them in such an authoritarian manner truly outraged me, and made it clear that despite these decisions being overturned, the individuals had lost faith in our judicial system. In such a context, an appeal might overturn a decision, but it’s unlikely the individual will be in the same place as they were before the decision, financially or otherwise.
Judge Vasta’s conduct and the resulting controversy is more than a reminder that we have weak judicial accountability mechanisms at a federal level. I believe that when studying law, we must remember that cases tell the stories of individuals who never wanted their time in court to become the subject of academic debate. Most of those that were interviewed on the podcast were unable to afford legal representation at the first instance, and appealing a decision is costly to the point that it is impossible without legal aid. However, without individuals bringing these appeals, the original decision stands unaffected.
I look forward to seeing both how the lawsuit against Judge Vasta, and any further calls to have Judge Vasta removed from office proceed. Judge Vasta is a reminder that the power judges exercise should not be unfettered, and that the focus of our legal system should always be upholding the dignity of individuals that come before the courts, regardless of why they are there.
Michelle is a second year law student.
 Bunning v Centacare  FCCA 280.