Protections from statutory encroachment

Australian Constitution

17.23   As noted above, s 75(iii) of the Australian Constitution may be taken to impliedly extinguish common law Crown immunity. It provides that in all matters in which the Commonwealth, or a person suing or being sued on behalf of the Commonwealth, is a party, the High Court shall have original jurisdiction.

17.24   Further, Crown immunity is removed by s 64 of the Judiciary Act:

In any suit to which the Commonwealth or a State is a party, the rights of parties shall as nearly as possible be the same, and judgment may be given and costs awarded on either side, as in a suit between subject and subject.[40]

17.25   However, s 64 of the Judiciary Act may be superseded or overridden by legislation providing for a specific immunity to a person or entity.

17.26   The Constitution does not create rights in tort nor does it expressly authorise any conduct that would otherwise constitute a tort. However, the implied constitutional freedom of political communication, recognised in a series of decisions of the High Court of Australia, has been held to preclude the unqualified application of the common law tort of defamation:

The common law of libel and slander could not be developed inconsistently with the Constitution, for the common law’s protection of personal reputation must admit as an exception that qualified freedom to discuss government and politics which is required by the Constitution.[41]

17.27   The implied constitutional freedom, recognised by the High Court as a restriction on the ability of people to sue for defamation, is not absolute. In Lange v Australian Broadcasting Corporation, the High Court formulated the constitutional defence as one of ‘qualified privilege’ to speak freely on government and political matters, drawing in concepts of reasonableness and subject to an absence of malice on the part of the speaker.[42]

Principle of legality

17.28   The principle of legality provides some protection for the principle that executive immunities should be only as wide as necessary to achieve the legislative purpose, and should not unduly derogate from individual rights.[43] When interpreting a statute, courts will presume that Parliament did not intend to grant the executive a wide immunity from liability or authorise what would otherwise be a tort, unless this intention was made unambiguously clear.[44] In the absence of clear language, courts will narrowly construe any legislative provision to this effect.

17.29   The application of the principle of legality to particular rights and freedoms is discussed throughout this report. A few cases that apply the principle in interpreting immunity and authorisation provisions are noted below.

17.30   The High Court case Board of Fire Commissioners v Ardouin[45] concerned a claim in negligence—an infant riding his bike in the street was hit by a fire truck that was racing towards the scene of a fire. The Court considered a section of the Fire Brigades Act 1909 (NSW) that gave immunity from liability to the Board of Fire Commissioners where damage was caused by a bona fide exercise of statutory authority under that Act. Kitto J expressed the principle of interpretation which arose:

Section 46 operates to derogate, in a manner potentially most serious, from the rights of individuals; and a presumption therefore arises that the Legislature, in enacting it, has chosen its words with complete precision, not intending that such an immunity, granted in the general interest but at the cost of individuals, should be carried further than a jealous interpretation will allow.[46]

17.31   In the same case, Dixon J pointed out that the immunity in that case was confined to aspects of the executive’s operations that justified special protection from liability:

It was not, however, expressed in terms which make it applicable to the doing of things in the course of performing the functions of the Board, which are of an ordinary character involving no invasion of private rights and requiring no special authority.[47]

17.32   Further High Court authority may be found in Puntoriero v Water Administration Ministerial Corporation.[48] Mr and Mrs Puntorierohad irrigated their potato crop using water supplied by a statutory corporation, and the water was contaminated. Could the corporation defend a claim of negligence by relying on a statutory provision that provided, in part, that ‘an action does not lie against’ the corporation ‘with respect to loss or damage suffered as a consequence of the exercise of a function’ of the corporation? The High Court held that it could not. Kirby J, although dissenting, commented:

It has been stated in a series of decisions in this Court that immunity provisions, such as the one in question here, will be construed jealously or strictly so as to confine the scope of the immunity conferred. [The reason for this] … is to ascertain the true purpose of the provision upon an hypothesis, attributed by the courts to Parliament, that legislators would not deprive a person of legal rights otherwise enjoyed against a statutory body, except by the use of clear language.[49]

17.33   Courts are similarly reluctant to hold that a statute authorises the commission of what would otherwise be a tort. In Puntoriero, McHugh J said:

In principle, there is no reason for construing a statutory provision limiting liability for government action differently from a statutory provision authorising government action. The reasons which require provisions of the latter kind to be read narrowly apply to provisions of the former kind. For that reason, provisions taking away a right of action for damages of the citizen are construed ‘strictly’, even jealously.[50]

17.34   In Coco v The Queen,[51] the High Court considered whether a statute that conferred authority on a judge to authorise a police officer to install a listening device extended to authorising the police officer to enter onto private premises to install the device. The Court held that the statute did not authorise this trespass. The majority said that statutory authority to ‘engage in what otherwise would be tortious conduct must be clearly expressed in unmistakable and unambiguous language’.

Every unauthorized entry upon private property is a trespass, the right of a person in possession or entitled to possession of premises to exclude others from those premises being a fundamental common law right. In accordance with that principle, a police officer who enters or remains on private property without the leave or licence of the person in possession or entitled to possession commits a trespass unless the entry or presence on the premises is authorized or excused by law.[52]

International law

17.35   While international covenants typically do not refer to prohibitions on excessively wide executive immunities as such, art 17 of the International Covenant on Civil and Political Rights (ICCPR)provides:

1. No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation.

2. Everyone has the right to the protection of the law against such interference or attacks.[53]

17.36   Article 17 may represent some limit on excessively wide executive immunities for arbitrary or otherwise unlawful interferences with a person’s privacy, home, honour or reputation.

17.37   International covenants also typically do not refer to the right of an individual not to be subject to tortious conduct in such terms, although many of their articles set out fundamental freedoms and rights which might be infringed by a person committing a tort.

17.38   Torture, for example, would constitute the torts of assault or battery and breach art 7 of the ICCPR. Imprisoning a person without lawful authority would constitute the tort of false imprisonment and breach art 9. Defaming a person would constitute the tort of defamation and breach art 17. While there is no settled tort of invasion of privacy in Australian common law, the equitable action of breach of confidence protects correspondence from some interferences in breach of art 17.[54]

17.39   International instruments cannot be used to ‘override clear and valid provisions of Australian national law’.[55] However, where a statute is ambiguous, courts will generally favour a construction that accords with Australia’s international obligations.[56]