17.75   Some laws that provide for executive immunities from civil liability or that authorise what would otherwise be a tort are no doubt justified. For example, the police need some powers of arrest and detention to enforce the law. This is also recognised in the common law.

17.76   Statutes give powers not only to the federal police, but to other law enforcement agencies, customs officials, defence personnel, immigration officials, security agencies and others. These include powers to arrest or detain persons, to seize or retain property, and to carry out intrusive investigations—conduct that might otherwise amount to a tort. These powers are commonly justified on the grounds that they are necessary to prevent crime and terrorism and to otherwise protect national security. They may also be necessary to properly enforce laws, including customs, quarantine and immigration laws.

17.77   However, many executive immunities from civil liability warrant particular and thorough justification. They limit people’s legal rights and have the potential to undermine the rule of law. Greater intrusions into people’s rights warrant stronger justification. Where a statute provides an immunity to a claim in negligence, the statute may amount to a ‘permission to be careless’.[93] Concerning government liability in negligence, Professor Aronson concludes:

it is never a good reason to deny a duty of care simply because the defendant is the government, or because it is a statutory authority, or because it has statutory powers or statutory duties. Each of those reasons is both far too general and far too narrow. They are too general because not all government entities are the same, and nor are their functions. They are too narrow because they imply that the private sector has no analogues equally deserving of special consideration. The search for categorical exemptions from government liability has proved elusive.[94]

17.78   The same caution may be applied to government immunities more broadly, for example with respect to other torts.

17.79   Other chapters of this report discuss some of the statutory provisions giving authority to Commonwealth agencies or officers to arrest or detain a person, to seize or detain property, or to enter property.

17.80   Where government immunities from civil liability are necessary, consideration should nevertheless be given to their appropriate scope—to the limitations and conditions attaching to the immunities. For example, where unclear, an immunity provision might make clear that it does not protect a government agency from oversight by the Ombudsman, if this is intended.

17.81   Many of the issues discussed in this chapter were reviewed more fully in the ALRC’s 2001 report, The Judicial Power of the Commonwealth. That report included a number of recommendations, including for legislation abolishing the Commonwealth’s procedural immunities from being sued[95] and for amendments to the Judiciary Act to state expressly that the Commonwealth is subject to the same substantive obligations at common law and in equity as apply to persons of full age and capacity, except as specifically provided by a Commonwealth Act.[96]

17.82   The 2001 report also called for further reviews, including a review of:

  • the law relating to claims for compensation for loss arising from wrongful federal administrative action;[97] and

  • the circumstances in which a statutory exception (to the principle that the Commonwealth should be subject to the same substantive obligations at common law and in equity as others) is considered necessary or desirable.[98]