Executive immunities from civil liability

17.9       Historically, the executive had the benefit of the broad common law immunity of ‘the Crown’.[12] 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.[13]

17.10   Historically, Australia has shown a ‘healthy concern for the rule of law’[14] by limiting this type of immunity by statute—in South Australia as early as 1853.[15] Dr Nick Seddon has written:

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.[16]

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]

17.12   The general immunity is now abrogated by statute in all Australian states and territories and in the Commonwealth.[18] For the federal government, Crown immunity from suit was abolished by the Judiciary Act 1903 (Cth),[19] and arguably under s 75(iii) of the Australian Constitution,[20] 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.[21]

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’.[22] In its submission, the Law Council supported this and other related recommendations in the ALRC’s 2001 report.[23]

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.[24] 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.[25]

17.15   The ‘Ipp Report’[26] 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.[27]

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.[28]