17.21 The key rationale for executive immunities is that the executive performs unique functions. The executive may need special powers and privileges to discharge its functions properly and effectively in what the government judges to be the broader public interest. The discharge of government functions goes beyond the adjudication of rights, interests and obligations between persons, and is focused on the public good, community and distributive justice.
17.22 As discussed in Chapter 16, statutes providing immunity from tort liability are generally based on the need to protect socially worthwhile agencies, activities or services from liability for negligence or strict liability. This is especially so where certain types of liability would make the agency’s task almost impossible. An example is the immunity given under s 57 of the Archives Act 1983 (Cth) to the Commonwealth against liability for defamation where access is given to records required to be made available for public purposes.
17.23 Some Australian laws that give executive immunities a wide application may be justified. The ALRC is seeking submissions identifying those Commonwealth laws that are not justified, and explaining why these laws are not justified.
Steven Price, ‘Crown Immunity on Trial: Desirability and Practicality of Enforcing Statute Law against the Crown’ (1990) 20 Victoria University of Wellington Law Review 213, 219, 228; David Cohen, ‘Thinking about the State: Law Reform and the Crown in Canada’ (1987) 24 Osgoode Hall LJ 379, 391.