17.9 Historically, the executive had the benefit of the broad common law immunity of ‘the Crown’. This extended not only to the sovereign, but to the executive government. In Commonwealth v Mewett, which includes a discussion of the history and rationale of Crown immunity, Dawson J said:
The immunities which the Crown enjoys from suit in contract and tort rest, however imperfectly and in different ways, upon the propositions that the sovereign cannot be sued in its own courts and that the sovereign can do no wrong.
The distance of the tyranny of English ways of thinking together with the need, in a frontier society, for new systems and roles of government combined to make Australia the pioneer of Crown proceedings legislation. … In addition, as has been pointed out by Gummow and Kirby JJ in Commonwealth v Mewett, the Constitution itself, with its recognition of the role of the High Court as the guardian of the Constitution, placed substantial limitations on the maxim that the sovereign could do no wrong.
17.11 The Law Council of Australia submitted that, in general, ‘the whole course of the development of Australian law … points to removal of executive immunity’.
17.12 The general immunity is now abrogated by statute in all Australian states and territories and in the Commonwealth. For the federal government, Crown immunity from suit was abolished by the Judiciary Act 1903 (Cth), and arguably under s 75(iii) of the Australian Constitution, suggesting Australia’s constitutional arrangements work against special immunities from suit for governments. Under ss 56 and 64 of the Judiciary Act the executive is, so far as possible, subject to the same legal liabilities as citizens.
17.13 Nevertheless, this position could be clarified. In its 2001 report, The Judicial Power of the Commonwealth, the ALRC recommended that the Judiciary Act be ‘amended to state expressly that the Commonwealth is subject to the same substantive obligations at common law and in equity to persons of full age and capacity, except as specifically provided by a Commonwealth Act’. In its submission, the Law Council supported this and other related recommendations in the ALRC’s 2001 report.
17.14 Thus the Commonwealth of Australia now has no general Crown immunity from liability in tort or other civil actions and is subject to the same procedural and substantive laws as those which govern claims by one individual against another. The Crown is also now subject to vicarious liability for the torts of its servants and agents, and may also have a non-delegable duty, to the same extent as an individual.
17.15 The ‘Ipp Report’ reviewed many aspects of public liability and made recommendations that have greatly reshaped the liability of public authorities in many jurisdictions. One recommendation was for the enactment of a ‘policy defence’ to a claim in negligence:
[A] policy decision (that is, a decision based substantially on financial, economic, political or social factors or constraints) cannot be used to support a finding that the defendant was negligent unless it was so unreasonable that no reasonable public functionary in the defendant’s position could have made it.
17.16 This ‘policy defence’ does not strictly create an immunity, but instead alters (and lowers) the applicable standard of care—which is another way of protecting someone from civil liability. Western Australia was the only jurisdiction to adopt a version of this recommendation.
The term ‘the Crown’ refers to ‘the government and its myriad components’: Mark Aronson and Harry Whitmore, Public Torts and Contracts (LBC Information Services, 1982) 2. This arises in the discussion of the history of Crown immunity and its abrogation. In contrast to the government, separate public authorities did not come within crown immunity: Carolyn Sappideen and Prue Vines (eds), Fleming’s The Law of Torts (Lawbook Co, 10th ed, 2011) 215. Whether or not a government instrumentality is to be regarded as ‘the Crown’ may be significant on a purely procedural level of deciding whom to sue: Aronson and Whitmore, 30.
Commonwealth v Mewett (1997) 191 CLR 471, 497. Others have suggested that, at least in theory, the Crown (and thus the executive) has always been regarded in law as able to commit a tort, but there have been procedural rules that prevent civil action: see, eg, Commonwealth v Mewett (1997) 191 CLR 471; Bell v Western Australia (2004) 28 WAR 555, 563–4. However, for the purposes of this chapter, it does not matter greatly whether the historical position of the executive government is characterised as a substantive principle of immunity or a procedural one.
Nick Seddon, ‘The Crown’ (2000) 28 Federal Law Review 245, 257.
See Claimants’ Relief Act 1853 (SA).
Seddon, above n 14, 257.
Law Council of Australia, Submission 75.
See further Aronson and Whitmore, above n 12, ch 1.
Judiciary Act 1903 (Cth) ss 56, 64.
Cf Commonwealth v Mewett (1997) 191 CLR 471.
Nicholas Seddon, Government Contracts: Federal, State and Local (Federation Press, 4th ed, 2009) 176.
Australian Law Reform Commission, The Judicial Power of the Commonwealth—A Review of the Judiciary Act 1903 and Related Legislation, Report No 92 (2001) Rec 25–3.
Law Council of Australia, Submission 75.
Maguire v Simpson (1977) 139 CLR 362. See further Aronson and Whitmore, above n 12, 7.
The Crown was not, at common law, vicariously liable for the torts of its servants or officers and also had no direct liability to its citizens: Sappideen and Vines, above n 12, 215. But the laws abrogating Crown immunity reverse that position. For example, the Commonwealth was held to have a non-delegable duty in negligence as a school authority to its pupils: Commonwealth v Introvigne (1982) 150 CLR 258.
Commonwealth of Australia, ‘Review of the Law of Negligence: Final Report (‘Ipp Report’)’ (2002).
Ibid 185, rec 39.
Civil Liability Act 2002 (WA) ss 5U, 5X.