Judging Vasta – Rebecca Ananian-Welsh 6Aug 2019

Back in 1989, Angelo Vasta became the first judge to be removed from office by an Australian parliament. Might his son, judge Salvatore Vasta of the Federal Circuit Court, become the second? And could his conduct force the federal government to create an independent judicial commission?

Since his appointment to the bench in 2015, Salvatore Vasta has resolved well over 1000 cases as well as holding key administrative positions on the FCC. But his tenure has been dogged by controversy, prompting some to ask whether he might be “Australia’s worst judge.” He has been criticised not only for making basic errors of fact and law, but also for rudeness, taking over cross-examinations, impermissibly jailing people appearing before him, and making orders that plaintiffs neither initiated nor supported.

Three cases have sparked particular attention and fuelled criticism.

First, Vasta fined an underpaying employer $85,000 and sentenced him to a maximum of twelve months’ imprisonment for contempt of court. The Full Federal Court overturned the decision in a scathing judgement that described his behaviour as “egregious,” “openly hostile,” “disparaging” and “sarcastic.” The appeal court also lambasted his interventions as “aggressive and, at times, unfair” and said his questions “frequently cut Mr Jorgensen off while he was endeavouring to explain critical aspects of his case” and were “in an unfair or inadmissible form and would have been objectionable if asked by counsel.”

In the second case, Vasta sentenced another man to twelve months’ imprisonment for contempt — this time a father of two young children who had failed to disclose financial documents during a property dispute with his estranged wife. The order was so serious that his wife opposed it, telling the court, “We have kids together that I have to think about as well, that this affects the kids for the rest of their lives.” Despite this, the man spent six days in maximum security prison, reportedly on suicide watch, before being released pending his appeal. In February the Full Court of the Family Court upheld that appeal, labelling Vasta’s orders no less than “an affront to justice.”

Then came Vasta’s order that the child of a same-sex couple “be baptised as a Catholic if it is in the view of a priest that it is appropriate for the baptism to occur,” even though no such order had been sought by the parties. This order was also overturned by the Full Court of the Family Court, with the three appeal judges adding that Vasta’s threat to jail one of the child’s parents for five years “might be seen as hyperbole, deployed in an attempt to bully…”

According to the Australian Financial Review, Vasta’s response to being overturned on appeal was to say, “It’s those Labor Party judges. They’re out to get me.” The newspaper’s legal affairs editor, Michael Pelly, was prompted to ask whether Vasta was “Australia’s worst judge.” The Law Council of Australia lodged a complaint with chief judge Will Alstergren and has threatened to refer the matter to federal parliament.

Is the removal of Salvatore Vasta from the bench a realistic or appropriate prospect? Let’s begin with some perhaps-uncomfortable truths. Judges are human. They make mistakes. They face demanding workloads in a high-pressure environment and they feel the inevitable effects. In an FCC memo reflecting on the pressures facing the court, Vasta said that “it would be understandable if we just gave into despair.”

The role of a judge is to interpret and apply the law to resolve disputes, but neither the law nor the facts of these disputes are necessarily clear. There is room for disagreement. Decisions may be appealed and appeal judges may favour different interpretations of the law and the facts. Judicial decisions may spark the ire of the parties, the public and even governments. It can be difficult to determine when judges are incompetent and when their behaviour in the courtroom — cultivated in a strongly adversarial world — crosses the line into misconduct.

No one understands these pressures better than judges themselves. This is why the comments of appeal courts carry particular weight in the Vasta controversy. Such direct criticism of a judge is rare. Repeated criticisms are cause for serious concern.

Shaping the whole area of judicial conduct and complaint management is that all-important constitutional principle: the separation of powers. It is vital that the judiciary maintains the basic independence and integrity that enable it to administer justice and uphold the rule of law.

The judiciary is kept at arm’s length from the government partly by laws that make it very difficult for the government to fire or even sanction judges, especially for their judicial work. For federal judges like Vasta, this protection is entrenched in section 72 of the Constitution, which provides that the governor-general in council may only remove a judge from office “on an address from both Houses of the Parliament in the same session, praying for such removal on the ground of proved misbehaviour or incapacity.” Similar protections exist in the states and territories.

The only time that the section 72 removal process came close to being deployed was during the attempted removal of High Court justice Lionel Murphy for allegedly attempting to pervert the course of justice to help his friend, solicitor Morgan Ryan. After multiple Senate inquiries and criminal trials, the removal process came to a halt when Murphy announced he had terminal cancer.

The removal of Vasta’s father from the Queensland Supreme Court likewise did not concern his judicial work. Angelo Vasta was implicated in the Fitzgerald inquiry into police corruption, which sparked a commission of inquiry consisting of three prominent retired judges. The commission reported that Vasta’s behaviour — which included giving false evidence in court and falsifying transactions and deductions for tax purposes — warranted his removal from office. In light of these findings the Queensland parliament sought, and the governor ordered, his removal from office.

What is the likelihood that Salvatore Vasta will be removed from office for his conduct on the FCC?

Neither Angelo Vasta nor Lionel Murphy was implicated for his judicial decisions and courtroom behaviour, and the removal of a judge on these grounds would be unprecedented and difficult. Parliament should, and would, take this step only in limited circumstances, applying high thresholds for misbehaviour and incapacity. The alleged misbehaviours of Angelo Vasta and Murphy were breaches of the law, and they faced legal consequences beyond removal. Salvatore Vasta’s conduct is more complicated.

And then comes the issue of proof. The Constitution requires “proved” misbehaviour or incapacity but does not elaborate on the methods or standards of proof.

In all, the removal of Vasta is not an imminent prospect, and it would take the federal parliament into uncharted and uncertain constitutional terrain.

Short of engaging constitutional removal processes, complaints against judges are traditionally handled within the court by the chief judge, who has a range of “soft powers” at his or her disposal. A recent FCC statement noted that these include “counselling, mentoring and in exceptional circumstances, the judge in question may be temporarily removed from sitting.”

Internal complaints management preserves judicial independence by limiting the government’s involvement in judicial business. It also preserves the integrity of the court by providing a flexible, discreet and potentially effective means to tackle the issues and account for the stresses and pressures that might underpin the problem.

In response to the complaints against Vasta, the FCC statement cited his “extremely heavy workload” and said that he had been asked to step down from some of his administrative roles, including as the court’s national list manager. Vasta was also receiving mentoring “in appropriate areas to fully assist and support the judge to fulfil his duties.”

Leaving complaint management to the chief judge has its weaknesses. One became clear during the brief and tumultuous tenure of Tim Carmody as chief justice of Queensland: if the chief judge handles complaints, then who handles complaints against the chief?

A further weakness lies in the apparent chasm between constitutional removal and soft censure. In light of the severity and consistency of the complaints against Vasta, the chief judge’s response risks the appearance of being too little too late and may not save the court’s reputation.

So how can the integrity of the court be maintained when discreet internal processes don’t seem to be enough, but a joint sitting of parliament is a step too far?

A positive trend has been gradually making its way across Australia. Independent judicial commissions have been introduced in New South Wales, South Australia, Victoria and the Australian Capital Territory. One of the primary roles of these bodies is to handle complaints against judges using a relatively clear and open process that allows both the complainant and the judge a chance to be heard. Importantly, commissions are at arm’s length from government, and the decision-making process can be tailored to the complaint (to avoid a judge resolving a complaint against himself or herself, for example, or other situations that could suggest bias).

These commissions fulfil a further, constitutional, role. They can find that the judge meets the requirements for removal from office and make a recommendation to parliament to that effect. Thus the commission can simplify the process from initial complaint to eventual removal, and address the sticky issue of “proving” that the grounds for removal are met.

At the moment the Northern Territory, Queensland, Western Australia and the Commonwealth lack independent bodies to handle complaints against judges. The introduction of independent judicial commissions in these jurisdictions would be a significant step in the right direction for judicial independence and integrity. It would complement and address weaknesses in the traditional internal complaints process. A clear, open and independent process would benefit the public and could even lessen the need for the scathing commentary and public critique of judges that can, awkwardly, risk judicial integrity by trying to improve it.

There is, though, an elephant in the room when judicial misbehaviour and incompetence are discussed. The appointment of federal judges is an opaque process that effectively rests in the hands of the attorney-general. This secretive and highly discretionary approach can, and has, resulted in political appointments to key decision-making positions. It risks putting judges on the bench who simply aren’t up to the job, which obviously has an impact on the lawyers and parties who appear before them.

This appointment system also has a broader systemic impact. Colleagues of struggling judges may be under increased stress as they pick up the slack. The number and complexity of appeals may increase. And there are time and cost ramifications for the parties and for the justice system as a whole. The reputation and integrity of a court rest in large part on the merit of its judges, and the importance of judicial appointments cannot be overstated.

In many jurisdictions independent commissions play an important role in judicial appointments. A new commission to handle complaints against federal judges could be just half the story in dealing with threats to judicial integrity by misbehaviour or incapacity. The other part of that story is the introduction of an independent body and more open process to assist the attorney-general in selecting judges.

Meanwhile, it’s been a tough year for Salvatore Vasta, who has been relieved of administrative duties while he takes part in mentoring sessions. A lot is riding on whether these strategies bring about some radical improvements in his courtroom behaviour. If not, chief judge Alstergren may have to take up his option of last resort and temporarily remove his most prolific judge from judicial duties.

Continued criticism and controversy may also compel the Law Council to follow through with its threat to refer Vasta to the federal parliament and seek his permanent removal from judicial office. But that would be an extreme step and could fall flat if Vasta’s conduct fails to meet the untested and uncertain constitutional requirements for removal. •