Protections from statutory encroachments

Australian Constitution

17.11   Section 75(iii) of the Australian Constitution may be taken to impliedly extinguish common law crown immunity. It states:

In all matters in which the Commonwealth, or a person suing or being sued on behalf of the Commonwealth, is a party, the High Court shall have original jurisdiction.

17.12   Further, crown immunity is removed by s 64 of the Judiciary Act:

In any suit to which the Commonwealth or a State is a party, the rights of parties shall as nearly as possible be the same, and judgment may be given and costs awarded on either side, as in a suit between subject and subject.[18]

17.13   However, s 64 of the Judiciary Act may be superseded or overridden by legislation providing for a specific immunity to a person or entity.

The principle of legality

17.14   The principle of legality provides some protection for the principle that executive immunities should be only as wide as necessary to achieve the legislative purpose, and should not unduly derogate from individual rights.[19] When interpreting a statute, courts will presume that Parliament did not intend to grant the executive a wide immunity from liability, unless this intention was made unambiguously clear.[20] In the absence of clear language, the courts will narrowly construe any provision providing a immunity.

17.15   In Board of Fire Commissioners v Ardouin (1961)[21] the High Court considered a section of a New South Wales statute giving immunity from liability for the Board of Fire Commissioners where damage was caused by a bona fide exercise of statutory authority under that Act. Kitto J expressed the principle of interpretation which arose:

Section 46 operates to derogate, in a manner potentially most serious, from the rights of individuals; and a presumption therefore arises that the Legislature, in enacting it, has chosen its words with complete precision, not intending that such an immunity, granted in the general interest but at the cost of individuals, should be carried further than a jealous interpretation will allow.[22]

17.16   In the same case, Dixon J pointed out that the immunity in that case was confined to aspects of the executive’s operations that justified special protection from liability:

It was not, however, expressed in terms which make it applicable to the doing of things in the course of performing the functions of the Board, which are of an ordinary character involving no invasion of private rights and requiring no special authority. [23]

17.17   Further, in Puntoriero v Water Administration Ministerial Corporation (1999),[24] McHugh J pointed out that statutes providing for immunities were to be read in the same way as statutes authorising what would otherwise be unlawful:

In principle, there is no reason for construing a statutory provision limiting liability for government action differently from a statutory provision authorising government action. The reasons which require provisions of the latter kind to be read narrowly apply to provisions of the former kind. For that reason, provisions taking away a right of action for damages of the citizen are construed ‘strictly’, even jealously.[25]

17.18   Kirby J, although dissenting, also stated:

It has been stated in a series of decisions in this Court that immunity provisions, such as the one in question here, will be construed jealously or strictly so as to confine the scope of the immunity conferred. The reason for this attitude on the part of courts is not, ostensibly, to defeat the purposes of the legislature. It is no function of courts to do that. Rather, it is to ascertain the true purpose of the provision upon an hypothesis, attributed by the courts to Parliament, that legislators would not deprive a person of legal rights otherwise enjoyed against a statutory body, except by the use of clear language. A similar rule applies in the construction of legislation defensive of liberty. A like approach is taken to the construction of legislation said to deprive the individual of procedural fairness.[26]

International law and bills of rights

17.19   While international covenants typically do not refer to prohibitions on excessively wide executive immunities as such, art 17 of the International Covenant on Civil and Political Rights provides:

1. No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation.

2. Everyone has the right to the protection of the law against such interference or attacks.

17.20   Article 17 may represent some limit on excessively wide executive immunities for arbitrary or otherwise unlawful interferences with a person’s privacy, home, honour or reputation. International instruments cannot be used to ‘override clear and valid provisions of Australian national law’.[27] However, where a statute is ambiguous, courts will generally favour a construction that accords with Australia’s international obligations.[28]