Judicial immunity is a well-established common law principle that protects judges from personal liability for actions performed as part of their judicial functions. The principle exists to ensure a judge can exercise his or her functions independently and based on the application of the law, without fear of personal liability after the fact.
The rationale for judicial immunity can be neatly summarised as follows:
- protects the freedom of judges in the exercise of their junctions, without fear of harassment or the threat of litigation.
- enhances public confidence in the legal system by ensuring the decision-making process of judges is not impacted by the prospect of judges being sued.
- achieves finality of judicial decisions by preventing a decision from being challenged through civil proceedings against the decision maker.
In Queensland v Stradford [2025] HCA 3, the High Court held that judges are immune from civil suit arising out of acts done in the exercise or purported exercise of their judicial function or capacity. The immunity applies to judicial officers of both the superior and inferior courts, as the principle does not operate for the benefit of individual judges, but for the preservation of judicial independence across all courts.
In NSW, the principle of judicial immunity is clarified and extended in Part 8A of the Judicial Officers Act 1986, which provides that judges (and other judicial officers) performing their duties, as well as ministerial duties, enjoy protection and immunity while performing those duties.
Judicial immunity does not operate to suggest that judicial officers are above the law and cannot be held accountable for misconduct. As highlighted in Yeldham v Rajski (1989) 18 NSWLR 48, while judges are protected from civil liability for acts done in the exercise of their judicial function, immunity does not extend to acts performed outside of their judicial function.
Judges remain liable for breaches of the criminal law and are not shielded from disciplinary processes, and in cases of proved misbehaviour or incapacity, removal from office. Further to this, most Australian states and territories have an independent statutory mechanism to receive and investigate complaints concerning the conduct of judicial officers.
In summary, the principle of judicial immunity is derived from common law and operates to protect the freedom of judges in the exercise of their judicial functions. Immunity does not extend to acts performed outside of judicial function, with judges remaining subject to criminal law and other disciplinary processes in relation to such acts.
