16.27 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.
16.28 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.
16.29 However, this provision may be superseded or overridden by legislation providing for a specific immunity to a person or entity.
16.30 The Constitution does not create rights in tort, however, as discussed throughout this Report, it does to some extent protect many traditional rights from statutory encroachment.
Principle of legality
16.31 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. 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. In the absence of clear language, courts will narrowly construe any legislative provision to this effect.
16.32 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.
16.33 The High Court case, Board of Fire Commissioners v Ardouin, concerned a claim in negligence—an infant riding his bike in the street was injured when 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.
16.34 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.
16.35 Further High Court authority may be found in Puntoriero v Water Administration Ministerial Corporation. 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 said:
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.
16.36 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.
16.37 In Coco v The Queen, 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.
16.38 International covenants typically do not refer to the right of an individual not to be subject to tortious conduct in such terms, nor do they explicitly prohibit broad executive immunities. But they do set out fundamental rights which might be infringed by tortious conduct. Imprisoning a person without lawful authority, for example, would constitute the tort of false imprisonment and may breach art 9 of the International Covenant on Civil and Political Rights. Defaming a person would constitute the tort of defamation and breach art 17. Torture would constitute the torts of assault or battery and breach art 7. 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, and invasions of privacy may breach art 17.
See also Judiciary Act 1903 (Cth) s 56; Australian Constitution s 78.
The principle of statutory interpretation now known as the ‘principle of legality’ is discussed more generally in Ch 2.
Board of Fire Commissioners v Ardouin (1961) 109 CLR 105, 116; Coco v The Queen (1994) 179 CLR 427; Puntoriero v Water Administration Ministerial Corporation (1999) 199 CLR 575.
Board of Fire Commissioners v Ardouin (1961) 109 CLR 105.
Puntoriero v Water Administration Ministerial Corporation (1999) 199 CLR 575.
Ibid  (McHugh J).
Coco v The Queen (1994) 179 CLR 427.
Ibid  (Mason CJ, Brennan, Gaudron and McHugh JJ) (citations omitted).
See Australian Law Reform Commission, Serious Invasions of Privacy in the Digital Era, Report No 123 (2014) ch 13.