16.1     Immunity provisions in legislation can limit the legal protection given to important rights and freedoms. They may operate to allow some interference—usually by government agencies—with a person’s liberty, freedom of movement, bodily security, property, and other rights, and deny civil redress. Although sometimes necessary, laws that give immunity from civil liability and authorise what would otherwise be a tort can limit individual rights and require careful justification.[1]

16.2     Laws that give executive immunities a wide application and laws that authorise what would otherwise be a tort are closely related.[2] Notably, an executive immunity may essentially authorise the executive or part of the executive to commit what would otherwise be a tort.[3] Statutes that authorise tortious conduct or provide for immunities from civil liability may sometimes apply to non-government actors, for example to those engaging in industrial action, but it is more common for them to apply only to the executive.

16.3     This topic is closely related to some of the other rights, freedoms and privileges considered in this Inquiry. Laws that give executive immunities a wide application and that authorise torts are problematic largely because they limit other individual rights. An immunity from the tort of trespass to land affects a person’s property rights.[4] A statute that authorises arrest and detention affects a person’s liberty and freedom of movement.[5]

16.4     Some laws that provide for executive immunities from civil liability or that authorise what would otherwise be a tort are no doubt justified. For example, the police need powers of arrest and detention to enforce the law. This is also recognised by the common law.

16.5     This chapter identifies many Commonwealth statutes that give some immunity not only to the federal police, but to other law enforcement agencies, customs officials, defence personnel, immigration officials, security agencies and others. The immunities protect these agencies from liability that might otherwise arise from the exercise of their statutory powers, including powers to arrest or detain people, to seize or retain property, and to carry out intrusive investigations. Such powers and associated immunities are commonly justified on the grounds that they are necessary to prevent crime, protect national security and otherwise enforce the law.

16.6     Although often necessary, executive immunities warrant particular and thorough justification. They limit people’s legal rights and have the potential to undermine the rule of law. Greater intrusions into people’s rights warrant stronger justification.

16.7     Where government immunities from civil liability are necessary, consideration should be given to their appropriate scope—to the limitations and conditions attaching to the immunities. For example, an immunity provision might make clear that it does not protect a government agency from oversight by the Ombudsman, if this is intended. An immunity provision might also explicitly exclude conduct not done in good faith.

16.8     Many of the issues discussed in this chapter were reviewed more fully in the ALRC’s 2001 report, The Judicial Power of the Commonwealth. That report included a number of recommendations, including for legislation abolishing the Commonwealth’s procedural immunities from being sued[6] and for amendments to the Judiciary Act 1903 (Cth) to state expressly that the Commonwealth is subject to the same substantive obligations at common law and in equity as apply to people of full age and capacity, except as specifically provided by a Commonwealth Act.[7]

16.9     The 2001 report also called for further reviews, including a review of:

  • the law relating to claims for compensation for loss arising from wrongful federal administrative action;[8] and

  • the circumstances in which a statutory exception (to the principle that the Commonwealth should be subject to the same substantive obligations at common law and in equity as others) is considered necessary or desirable.[9]