16.75 Executive liability is limited by the operation of the ‘independent discretion rule’, also known as the Enever principle, which limits the vicarious liability of government for certain wrongs committed by government employees.
The basic idea behind this rule is that, if powers are conferred by law directly upon an employee, such a person is considered to be executing an independent discretion or original authority for the consequences of which the employer is not vicariously responsible. Of course, the corollary of this rule is that the individual officer may bear a personal liability.
16.76 This principle has been abrogated by statute in New South Wales and, to the extent that it applies to police officers, in other jurisdictions, including the Commonwealth.
16.77 The independent discretion rule has been widely criticised and in 2001, despite finding the rule had relatively little practical effect, the ALRC recommended it be abolished.
Enever v The King (1906) 3 CLR 969.
Cubillo v Commonwealth (No 2) (2000) 174 ALR 97,  (O’Loughlin J). The independent discretion rule therefore limits the basic principle in tort law that ‘an employer is liable for the damage caused by the negligent acts or omissions of its servants when they are acting within the scope of their employment’: Ibid .
Law Reform (Vicarious Liability) Act 1983 (NSW) s 8.
See, eg, Australian Federal Police Act 1979 (Cth) s 64B(1). ‘The Commonwealth is liable in respect of a tort committed by a member or a protective service officer in the performance or purported performance of his or her duties … in like manner as a person is liable in respect of a tort committed by his or her employee in the course of his or her employment’.
‘The principle in Enever v The King (1906) 3 CLR 969, namely, that the Commonwealth is not vicariously liable for the tortious conduct of Commonwealth officers who act with independent discretion pursuant to statute, should be expressly abolished in relation to the Commonwealth’: 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 25–1.