Justifications for encroachments

16.39  The executive performs unique functions, and may need special powers and privileges to discharge those functions, particularly when pursuing a broader public good. Exposure to some types of liability might make a government agency’s task very difficult, or prohibitively costly, to perform.[53] It is therefore generally accepted that executive immunities from civil liability will at least sometimes be justified.

16.40  Perfect equality before the law between government and citizen is not possible, Gleeson CJ suggested in Graham Barclay Oysters Pty Ltd v Ryan. The formula that in proceedings against the government, rights should be as nearly as possible the same as in an ordinary case between subject and subject,

reflects an aspiration to equality before the law, embracing governments and citizens, and also a recognition that perfect equality is not attainable. Although the first principle is that the tortious liability of governments is, as completely as possible, assimilated to that of citizens, there are limits to the extent to which that is possible. They arise from the nature and responsibilities of governments. In determining the existence and content of a duty of care, there are differences between the concerns and obligations of governments, and those of citizens.[54]

16.41  However, as Emeritus Professor Mark Aronson has written, discussing government liability in negligence, the ‘trouble is that while most people have a sense that governments occasionally warrant different treatment, the commentators have difficulty agreeing on a set of principles to determine when that is the case’.[55] Moreover, at least in regard to negligence, the common law may provide only limited assistance if, as Aronson states, the ‘common law on the liability of government authorities in negligence is remarkably confused’.[56] Where a statute provides an immunity to a claim in negligence, the statute may amount to a ‘permission to be careless’.[57] Concerning government liability in negligence, Aronson concludes:

it is never a good reason to deny a duty of care simply because the defendant is the government, or because it is a statutory authority, or because it has statutory powers or statutory duties. Each of those reasons is both far too general and far too narrow. They are too general because not all government entities are the same, and nor are their functions. They are too narrow because they imply that the private sector has no analogues equally deserving of special consideration. The search for categorical exemptions from government liability has proved elusive.[58]

16.42  The same caution may be applied to government immunities more broadly, for example with respect to other torts.

16.43  Where immunities from civil liabilities affect people’s rights—including their liberty, property and freedom of speech—such immunities are presumably only justified when strictly necessary. This may often be assessed by applying a structured proportionality analysis, of the sort widely used in international law, countries with bills of rights and human rights Acts, and by the Australian Parliamentary Joint Committee on Human Rights.[59]

16.44  The executive performs unique functions, but it also carries unique responsibilities. Governments may seek to enact laws that authorise their own agencies and officials to act in a way that would normally create legal liability, and to exclude or limit that liability. This may also suggest the need for some caution in giving executive immunities.

16.45  It may be less difficult to justify immunities given to people who make complaints or provide evidence to government regulators, and immunities given to public officials who disclose illegal, corrupt or other such conduct.