A common law principle

17.1       Immunity provisions in legislation can limit the legal protection given to important rights and freedoms. They may operate to allow some interference—usually by government agencies—with a person’s liberty, freedom of movement, bodily security, property, and other rights, and deny civil redress. Although sometimes necessary, laws that give immunity from civil liability and authorise what might otherwise be a tort operate to limit individual rights and arguably should only be enacted when necessary.

17.2       It is a fundamental tenet of the rule of law that no one is above the law. This principle applies not only to ordinary citizens, but to the government, its officers and instrumentalities: their conduct should be ruled by the law. AV Dicey wrote that the rule of law encompasses

equality before the law or the equal subjection of all classes to the ordinary law of the land administered by the ordinary Law Courts; the ‘rule of law’ in this sense excludes the idea of any exemption of officials or others from the duty of obedience to the law which governs other citizens or from the jurisdiction of the ordinary tribunals.[1]

17.3       In general, the government, and those acting on its behalf, should be subject to the same liabilities, civil and criminal, as any individual.

17.4       This chapter concerns two of the items listed in the Terms of Reference: the one that refers to laws that ‘give executive immunities a wide application’ and another that refers to laws that ‘authorise the commission of a tort’.[2] These types of law are closely related. Notably, an executive immunity may essentially authorise the executive or part of the executive to commit what would otherwise be a tort.[3] Statutes that authorise tortious conduct or provide for immunities from civil liability may sometimes apply to non-government actors, for example to those engaging in industrial action, but it is more common for them to apply only to the executive.

17.5       Executive immunities from civil liability are the main focus of this chapter. This chapter discusses the source and rationale of the principle that executive immunities from legal liability should be limited; how this principle is protected from statutory encroachment; and when laws that give the executive a wide immunity may be justified.

17.6       This topic is closely related to some of the other rights, freedoms and privileges listed in the Terms of Reference. Laws that give executive immunities a wide application and that authorise torts are problematic largely because they limit other individual rights. An immunity from the tort of trespass to land affects a person’s property rights.[4] A statute that authorises arrest and detention affects a person’s liberty and freedom of movement.[5]

17.7       Immunity from statute is a related but distinct type of executive immunity, but it is not the subject of this chapter. There is a general presumption of statutory interpretation that statutes are not intended to bind the Crown,[6] in the absence of clear words or necessary implication.[7] In 1990, the High Court in Bropho v Western Australia held that this presumption only provides limited protection to the government, and gives way to an express or implied intention that legislation binds the executive.[8] However, the Terms of Reference suggest that laws that give executive immunities a wide application encroach on a traditional principle. Laws that provide for an immunity from statute would be consistent with a traditional Crown immunity, rather than an encroachment upon it, and such laws are therefore not considered in this chapter.

17.8       Further, the traditional principle that executive immunities should not be given a wide application does not extend to immunity from criminal laws. In fact, there is a strong common law presumption that the executive is not criminally liable.[9] This is reflected in the Guide to Framing Commonwealth Offences, which states that the Crown ‘cannot be held criminally responsible unless legislation provides to the contrary’ and that it is ‘generally not appropriate to make a contrary provision’.[10] Executive immunity from criminal prosecution is therefore also outside the scope of this chapter.[11]