16.10 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.
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.
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’ by limiting this type of immunity by statute—in South Australia as early as 1853. 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.
16.14 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’.
16.15 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), 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.
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’. In its submissions, the Law Council supported this and other related recommendations in the ALRC’s 2001 report.
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. 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.
16.18 A 2002 review of the law of negligence, chaired by the Hon David Ipp QC, 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.
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.
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, 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, in the absence of clear words or necessary implication. 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. 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.
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.
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, although there are statutory wrongs which are analogous to torts. In addition, many statutes extend or limit 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. Many common law torts have a long history, some dating as far back as the 13th century, although others were created more recently.
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.
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. 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.
AV Dicey, Introduction to the Study of the Law of the Constitution (10th ed, 1985) 202.
Nick Seddon, ‘The Crown’ (2000) 28 Federal Law Review 245, 257.
See Claimants’ Relief Act 1853 (SA).
Seddon, above n 13, 257.
Law Council of Australia, Submission 75.
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 140; Law Council of Australia, Submission 75.
Maguire v Simpson (1977) 139 CLR 362. See further Aronson and Whitmore, above n 10, 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 10, 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’ (2002).
Ibid 185, rec 39.
Civil Liability Act 2002 (WA) ss 5U, 5X.
The Terms of Reference suggest that laws that give executive immunities a wide application encroach on a traditional principle. But laws that provide for an immunity from statute would be consistent with a traditional Crown immunity, rather than an encroachment upon it. This is not to suggest that such immunities are therefore justified, but only that they are outside the scope of this chapter.
‘Generally speaking, in the construction of acts of parliament, the king in his royal character is not included, unless there be words to that effect’: R v Cook (1790) 3 TR 519, 521 (Lord Kenyon). See also Attorney-General v Donaldson (1842) 10 M & W 117, 124 (Alderson B); Ex Parte Post Master General; In re Bonham (1879) 10 Ch D 595, 601 (Jessel MR).
Province of Bombay v The Municipal Corporation of Bombay  AC 58; Commonwealth v Rhind (1966) 119 CLR 584. See also Australian Law Reform Commission, The Judicial Power of the Commonwealth—A Review of the Judiciary Act 1903 and Related Legislation, Report No 92 (2001) [5.171]–[5.172].
Bropho v Western Australia (1990) 171 CLR 1, 15, 18–19 (Mason CJ, Deane, Dawson, Toohey, Gaudron and McHugh JJ); 28 (Brennan J). Where this rebuttable presumption applies and legislation is interpreted as not binding government, it may be said to give the executive a form of ‘immunity’ from laws which apply to ordinary citizens. In modern times, with the increased outsourcing of governmental functions, the principle could provide protection to parties contracting with the Crown, but only where the application of statutory liability would impair the Crown’s legal interests, or prevent the divestment of proprietary, contractual or other legal rights and interests of the Crown: Australian Competition and Consumer Commission v Baxter Healthcare Pty Ltd (2007) 232 CLR 1, – (Gleeson CJ, Gummow, Hayne, Heydon and Crennan JJ).
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 26–1. In its submission to this Inquiry, the Law Council similarly recommended that the Acts Interpretation Act 1901 (Cth) be amended ‘to provide that all Acts are to be taken to bind the Crown in all its capacities, unless expressly stated otherwise’: Law Council of Australia, Submission 140.
Tony Honoré, ‘The Morality of Tort Law’ in David Owen (ed), Philosophical Foundations of Tort Law (Clarendon Press, 1995) 75.
William Blackstone, Commentaries on the Laws of England, (Clarendon Press reprinted by Legal Classics Library, first published 1765–1769, 1983 ed) bk III; Fredrick Pollock and Frederic Maitland, The History of English Law before the Time of Edward I (Cambridge University Press, 2nd ed, 1899) vol II, ch VIII.
For example, the statutory liability for misleading or deceptive conduct in trade or commerce: see fair trading Acts and the Australian Consumer Law (Cth) s 18.
See, eg, Compensation to Relatives Act 1987 (NSW). See also equivalent acts in other states and territories that extend tort liability to fatal accidents.
See, eg, Civil Liability Act 2002 (NSW). See also how workers’ compensation legislation limits common law claims and how state and territory Uniform Defamation Acts regulate defamation claims.
Kit Barker et al, The Law of Torts in Australia (Oxford University Press, 2012) 583; Sappideen and Vines, above n 10, 149–50; 215–22.
SFC Milsom, Historical Foundations of the Common Law (Lexis Nexis Butterworths, 2nd ed, 1981) 283; Pollock and Maitland, above n 33; JH Baker, An Introduction to English Legal History (Butterworths, 1971) 82–5. Despite their common law origins, most tort actions are subject to some statutory variation of the common law principles by state and territory legislation. Numerous statutes limit actions or defences, provide limitation periods, cap or exclude awards of damages, and provide for survival of actions. The Uniform Defamation Acts in all states and territories modify the common law action of defamation.
B Creighton and Others, Submission 24. ‘In a series of decisions between 1880 and 1901 the English courts identified a range of tort liabilities, which cumulatively had the effect of fixing any worker who engaged in industrial action, or any union official who organised such action, with responsibility for any losses that the action inflicted upon another party (most obviously, the employer)’: Ibid.
For example, to prevent a trespass or a nuisance: Sappideen and Vines, above n 10, 58; 522–3.