Vicarious immunity

16.75  Executive liability is limited by the operation of the ‘independent discretion rule’, also known as the Enever principle,[89] 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.[90]

16.76  This principle has been abrogated by statute in New South Wales[91] and, to the extent that it applies to police officers, in other jurisdictions, including the Commonwealth.[92]

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.[93]