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.
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.
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’. However, that general immunity has been abrogated by statute in all states and territories. For the federal government, crown immunity from suit was abolished by the Judiciary Act 1903 (Cth) (‘Judiciary Act’), and arguably under section 75(iii) of the Australian Constitution. 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.
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. 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.
17.8 Many statutes, however, provide an express immunity from liability arising out of certain functions or operations of government. There is also a general presumption of statutory interpretation (which has been called ‘a presumption of crown immunity from statute’) that statutes were not intended to bind the Crown, in the absence of clear words or necessary implication. 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. It gives way to an express or implied intention that legislation binds the executive. 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.
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. 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.
AV Dicey, Introduction to the Study of the Law of the Constitution (Macmillan, Third, 1889) 190.
The issues in this chapter overlap considerably with those in Ch 16 on statutes authorising conduct that would otherwise be a tort.
The term ‘the Crown’ refers to ‘the government and its myriad components’: Mark Aronson and Harry Whitmore, Public Torts and Contracts (LBC Information Services, 1982) 2, and following. This arises in the discussion of the history of Crown immunity and its abrogation. In contrast to the government, separate public authorities did not come within crown immunity: Carolyn Sappideen and Prue Vines (eds), Fleming’s The Law of Torts (Lawbook Co, 10th ed, 2011) 215. Whether or not a government instrumentality is to be regarded as ‘the Crown’ may be significant on a purely procedural level of deciding who to sue: Aronson and Whitmore, 30.
See further Aronson and Whitmore, above n 3, Ch 1.
Judiciary Act 1903 (Cth) ss 64, 56.
Cf Commonwealth v Mewett (1997) 191 CLR 471.
Nicholas Seddon, Government Contracts: Federal, State and Local (The Federation Press, 4th ed, 2009) 176.
Maguire v Simpson (1977) 139 CLR 362. See further Aronson and Whitmore, above n 3, 7.
The Crown was not, at common law, vicariously liable for its servants’ or officers’ torts and also had no direct liability to its citizen: Sappideen and Vines, above n 3, 215. But the laws abrogating Crown immunity reverse that position. For example, the Commonwealth was held to have a non-delegable duty in negligence as a school authority to its pupils: Commonwealth v Introvigne (1982) 150 CLR 258.
Immunities of non-government actors from liability in tort were considered in Ch 16.
Australian Law Reform Commission, The Judicial Power of the Commonwealth—A Review of the Judiciary Act 1903 and Related Legislation, Discussion Paper No 64 (2000) [5.171]–[5.172].
‘Generally speaking, in the construction of acts of parliament, the king in his royal character is not included, unless there be words to that effect’: R v Cook (1790) 3 TR 519, 521 (Lord Kenyon). See also: Attorney-General v Donaldson (1842) 10 M&W 117, 124 (Alderson B); Ex Parte Post Master General; In re Bonham (1879) 10 Ch D 595, 601 (Jessel MR).
Province of Bombay v The Municipal Corporation of Bombay  AC 58; The Commonwealth v Rhind (1966) 119 CLR 584.
Bropho v Western Australia (1990) 171 CLR 1, 15 (Mason CJ, Deane, Dawson, Toohey, Gaudron and McHugh JJ), 28 (Brennan J).
In modern times, with the increased outsourcing of governmental functions, the principle could provide protection to parties contracting with the Crown, but only where the application of statutory liability would impair the Crown’s legal interests, or prevent the divestment of proprietary, contractual or other legal rights and interests of the Crown: Australian Competition and Consumer Commission v Baxter Healthcare Pty Ltd (2007) 232 CLR 1, 36–37 – (Gleeson CJ, Gummow, Hayne, Heydon and Crennan JJ).
For example, the Environmental Planning and Assessment Act 1979 (NSW) provides that a council issuing a planning certificate in respect of land ‘shall not incur any liability in respect of any advice provided in good faith’: Environmental Planning and Assessment Act 1979 (NSW) s 149. Such a section would prevent a council incurring liability for negligent misstatement in a certificate, as had occurred in Shaddock v Parramatta City Council (1981) 150 CLR 225.