A common law principle

17.1       It is a fundamental tenet of the rule of law that no one is above the law. This principle applies to the government, its officers and instrumentalities: their conduct should be ruled by the law. AV Dicey wrote that the rule of law encompasses:

equality before the law or the equal subjection of all classes to the ordinary law of the land administered by the ordinary Law Courts; the ‘rule of law’ in this sense excludes the idea of any exemption of officials or others from the duty of obedience to the law which governs other citizens or from the jurisdiction of the ordinary tribunals.[1]

17.2       In general, the government, and those acting on its behalf, should be subject to the same liabilities, civil and criminal, as any individual.[2]

17.3       While various statutes now provide for immunities for the executive arm of the Commonwealth in a wide range of specific contexts, these immunities should have no wider application than is necessary to achieve the specific legislative purpose.

17.4       This chapter considers immunities granted by statute to the executive arm of government. It discusses the source and rationale of the principle that executive immunities from legal liability should be limited; how this principle is protected from statutory encroachment; and when laws that give the executive a wide immunity may be justified.

17.5       The ALRC calls for submissions on two questions.

Question 17–1          What general principles or criteria should be applied to help determine whether a law that gives executive immunities a wide application is justified?

Question 17–2          Which Commonwealth laws unjustifiably give executive immunities a wide application, and why are these immunities not justified?

17.6       The executive historically had the benefit of the broad common law immunity of ‘the Crown’.[3] However, that general immunity has been abrogated by statute in all states and territories.[4] For the federal government, crown immunity from suit was abolished by the Judiciary Act 1903 (Cth)[5] (‘Judiciary Act’), and arguably under section 75(iii) of the Australian Constitution.[6] Under ss 56 and 64 of the Judiciary Act the executive is, so far as possible, subject to the same legal liabilities as the citizen.[7]

17.7       Thus the Commonwealth of Australia now has no general Crown immunity from liability in tort or other civil actions and is subject to the same procedural and substantive laws as those which govern claims by one individual against another.[8] The Crown is also now subject to vicarious liability for the torts of its servants and agents, and may also have a non-delegable duty, to the same extent as an individual.[9]

17.8       Many statutes, however, provide an express immunity from liability arising out of certain functions or operations of government.[10] There is also a general presumption of statutory interpretation (which has been called ‘a presumption of crown immunity from statute’[11]) that statutes were not intended to bind the Crown,[12] in the absence of clear words or necessary implication.[13] In 1990, the High Court in Bropho v Western Australia held that this presumption only provides limited protection to the government from liability under or control by statute. Contrary to some conflicting authority, the High Court emphasised that the presumption was simply a rule of statutory interpretation, and should not be elevated to any higher status.[14] It gives way to an express or implied intention that legislation binds the executive.[15] Where this rebuttable presumption applies and legislation is interpreted as not binding government, it may be said to give the executive a form of ‘immunity’ from laws which apply to ordinary citizens.[16]

17.9       However, this chapter is concerned only with express immunities from civil and criminal liability provided in Commonwealth statutes to the executive and its officers, employees, and agents.

17.10   An express immunity will often be qualified by a good faith requirement.[17] So for example, s 99ZR of the National Health Act 1953 (Cth) provides:

(1) … neither the Commonwealth, the Chief Executive Medicare nor any person performing duty as a Customs officer or as a Departmental employee … is liable for any act done in good faith by such a Customs officer, by the Chief Executive Medicare, or by such an employee in the performance of functions or duties, or the exercise of powers, under this Division.