A common law principle

16.10  Historically, the executive had the benefit of the broad common law immunity of ‘the Crown’.^[10] 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.^[11]

16.11  However, 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.^[12]

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

16.13  Historically, Australia has shown a ‘healthy concern for the rule of law’^[13] by limiting this type of immunity by statute—in South Australia as early as 1853.^[14] 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.^[15]

16.14  The Law Council of Australia (the Law Council) submitted that, in general, ‘the whole course of the development of Australian law … points to removal of executive immunity’.^[16]

16.15  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),^[17] and arguably under s 75(iii) of the Australian Constitution,^[18] 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.^[19]

16.16  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’.^[20] In its submissions, the Law Council supported this and other related recommendations in the ALRC’s 2001 report.^[21]

16.17  The Commonwealth of Australia therefore 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.^[22] 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.^[23]

16.18  A 2002 review of the law of negligence, chaired by the Hon David Ipp QC,^[24] considered many aspects of public liability and made recommendations that have greatly reshaped the liability of public authorities in many Australian 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.^[25]

16.19  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.^[26]

Immunity from statute

16.20  Immunity from statute is a related but distinct type of executive immunity. Although this government immunity from statutory obligations is not the subject of this chapter,^[27] there have been calls for reform to limit and clarify these immunities. There is a general presumption of statutory interpretation that statutes are not intended to bind the Crown,^[28] in the absence of clear words or necessary implication.^[29] 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.^[30] However, the law with respect to immunities from statute remains unclear and uncertain. To remove such uncertainty, the ALRC in 2001 recommended that the Judiciary Act be amended to provide that the Commonwealth is bound by every Commonwealth Act enacted after the amendment unless the relevant Act expressly states otherwise.^[31]

What is a tort?

16.21  Executive immunity from civil liability most commonly arises in the context of potential tort liability. A tort is a legal wrong which one person or entity (the tortfeasor) commits against another person or entity and for which the usual remedy is an award of damages. Many torts protect fundamental liberties, such as personal liberty, and fundamental rights, such as property rights, and provide protection from interferences by other people or entities and by the Crown. In short, torts protect people from wrongful conduct by others and give claimants a right to sue for compensation or possibly an injunction to restrain the conduct. Like criminal laws, laws creating torts also have a normative or regulatory effect on conduct in society:

When the legislature or courts make conduct a tort they mean, by stamping it as wrongful, to forbid or discourage it or, at a minimum, to warn those who indulge in it of the liability they may incur.^[32]

16.22  A statute authorising conduct that would otherwise be a tort may therefore reduce the legal protection of people from interferences with their rights and freedoms.

16.23  Torts are generally created by the common law,^[33] although there are statutory wrongs which are analogous to torts.^[34] In addition, many statutes extend^[35] or limit^[36] tort remedies, while statutory duties and powers may provide a basis for duties or liability in tort, either in the common law tort of breach of statutory duty, or the common law tort of negligence.^[37] Many common law torts have a long history, some dating as far back as the 13th century,^[38] although others were created more recently.^[39]

16.24  Although a tort may also amount to a crime, claims in tort are civil claims generally brought by people seeking compensation from the tortfeasor for injury or loss. Torts may be committed by individuals, corporate entities or public authorities, including government departments or agencies. Tort liability includes both personal liability and vicarious liability (for torts committed by employees or agents).

16.25  Torts include assault, battery, false imprisonment, trespass to land or goods, conversion of goods, private and public nuisance, intimidation, deceit, and the very expansive tort of negligence. Negligence occurs in many different social contexts, including on the roads, in the workplace, or through negligent medical care or professional services. The common law tort of defamation has long protected personal reputation from untruthful attacks.

16.26  While not all consequences of tortious conduct result in an award of damages, generally people have a right to legal redress if they can prove, on the balance of probabilities, that they have been the victim of a tort. In some cases, the affected person may seek an injunction from the courts to prevent the tort happening or continuing.^[40]