Laws that give immunity from civil liability

16.46  A statute may restrict a person’s right to sue in tort in several ways, for example:  by authorising conduct that would otherwise be a tort; by providing a defence of statutory authority to conduct that may constitute a tort, particularly if reasonable care is not taken;^[60] and by giving a person an exemption or immunity from civil liability in tort.

16.47  Many examples of such laws are discussed in other chapters of this report, in the context of the individual right the law interferes with. For example, laws that authorise or provide an immunity from:

• the tort of defamation are discussed in the freedom of speech chapter;^[61]

• the torts of trespass to person and false imprisonment are discussed in the freedom of movement chapter;^[62] and

• the tort of trespass to property is discussed in the chapters about property rights.^[63]

16.48  Some of these laws are also noted briefly below, although most are examples of more general statutory immunities from civil liability.

Authorising torts—police, customs and tax office powers

16.49  There are many examples of Commonwealth statutes that give authority to a Commonwealth officer or agency to do what would otherwise be a tort. For example, statutes give authority to federal police officers and customs officers to arrest or detain a person, to search a person, to enter and search property, or to seize or retain seized property. As long as the officer acts within the lawful authority given by the statute or common law, such conduct will not constitute a tort. Without such lawful authority, these types of conduct would amount to trespass to the person, trespass to land, or trespass or conversion of goods.

16.50  For example, powers to arrest without a warrant are found in the Australian Federal Police Act 1979 (Cth) s 14A and the Crimes Act 1914 (Cth) ss 3W, 3WA, 3X, 3Y and 3Z. Powers of arrest without a warrant are also provided at common law, and provided a justification in an action in tort.^[64]

16.51  The Customs Act 1901 (Cth) s 210(1) authorises an officer of customs or the police to arrest a person, in some circumstances, without a warrant, if the officer believes on reasonable grounds that the person has committed certain offences. This provision authorises what would otherwise be a tort.

16.52  Statutes may also authorise an arresting officer to search a person to find hidden weapons or prevent the loss of evidence^[65] and to use some limited level of force when arresting a person.^[66] Without such authority—whether at common law or in statute—such physical interference might amount to the tort of trespass to the person.

16.53  The Australian Taxation Office has statutory access and information-gathering powers. For example, the access power in the Taxation Administration Act 1953 (Cth) provides that a tax official, for the purposes of a taxation law, ‘may at all reasonable times enter and remain on any land, premises or place’ and ‘is entitled to full and free access at all reasonable times to any documents, goods or other property’.^[67] This authorises what would otherwise be the tort of trespass to property.^[68]

Other public authorities

16.54  Section 246 of the Australian Securities and Investments Commission Act 2001 (Cth) is typical of the immunity from civil suit (for example, for the torts of negligence or breach of statutory duty) that is given to various public authorities. It provides that the Minister, ASIC, a member of ASIC, and a number of other persons listed in the provision, are not

liable to an action or other proceeding for damages for or in relation to an act done or omitted in good faith in performance or purported performance of any function, or in exercise or purported exercise of any power, conferred or expressed to be conferred by or under the corporations legislation, or a prescribed law of the Commonwealth, a State or a Territory.^[69]

16.55  Similar provisions may be found in the following Commonwealth Acts, among others:

• Age Discrimination Act 2004 (Cth) s 58;

• Australian Information Commissioner Act 2010 (Cth) s 35;

• Australian Sports Anti-Doping Authority Act 2006 (Cth) s 78;

• Australian Sports Commission Act 1989 (Cth) s 57;

• Imported Food Control Act 1992 (Cth) s 38;

• Inspector-General of Intelligence and Security Act 1986 (Cth) s 33;

• National Health Act 1953 (Cth) s 99ZR;

• Navigation Act 2012 (Cth) s 324;

• Ombudsman Act 1976 (Cth) s 33; and

• Product Stewardship (Oil) Act 2000 (Cth) s 31.

16.56  Many of these provisions contain an explicit ‘good faith’ proviso, but others do not. For example, s 34(1) of the Australian Postal Corporation Act 1989 (Cth) provides:

An action or proceeding does not lie against Australia Post or any other person in relation to any loss or damage suffered, or that may be suffered, by a person because of any act or omission (whether negligent or otherwise) by or on behalf of Australia Post in relation to the carriage of a letter or other article by means of the letter service.

16.57  In Little v Commonwealth,^[70] the High Court considered an immunity provision that was silent on the notion of ‘good faith’. Dixon J held that the provision removed liability from the arresting police for all actions, except those not done in good faith.^[71]

16.58  The above provision from the Australian Postal Corporation Act also highlights that executive immunities are sometimes extended to government business enterprises, such as Australia Post.^[72]

16.59  Some statutes expressly give an immunity not only from civil proceedings, but from criminal proceedings, For example, the Classification (Publications, Films and Computer Games) Act 1995 (Cth) provides:

Criminal or civil proceedings do not lie against [certain prescribed people] in relation to anything done, or omitted to be done, in good faith by the person in connection with the performance or purported performance of functions or duties, or the exercise or purported exercise of powers, conferred by this Act.^[73]

16.60  Other provisions giving an immunity from both civil and criminal proceedings include:

• Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth) ss 75P, 235;

• Australian Security Intelligence Organisation Act 1979 (Cth) s 35K;

• Broadcasting Services Act 1992 (Cth) s 203 (in relation to defamation); and

• Trade Marks Act 1995 (Cth) s 226B.

16.61  Some statutes set out limitations on the immunity more fully. For example, the immunity for those participating in a special intelligence operation, in s 35K of the Australian Security Intelligence Organisation Act 1979 (Cth), does not extend to conduct that causes death or serious injury, constitutes torture, or causes significant loss of, or serious damage to, property. It also only applies to authorised conduct that is engaged in as part of a special intelligence operation under div 4, pt IIIof the Australian Security Intelligence Organisation Act 1979 (Cth). Nevertheless, the Law Council submitted that the immunity ‘may not contain adequate safeguards’ and compared the provision to those related to the Australian Federal Police’s controlled operations scheme in the Crimes Act.^[74]

16.62  Other immunity provisions apply not just to a particular government agency, but to the executive government more broadly. For example, s 2A(3) of the Competition and Consumer Act 2010 (Cth) provides:

Nothing in this Act makes the Crown in right of the Commonwealth liable to a pecuniary penalty or to be prosecuted for an offence.

16.63  Sections 494AA and 494AB of the Migration Act 1958 (Cth) also bar certain legal proceedings against the Commonwealth, including ‘proceedings relating to an unauthorised entry by an unauthorised maritime arrival’ and proceedings related to the exercise of powers to bring a ‘transitory person’ to Australia from a country or place outside Australia. The latter type of power is said to include restraining a person on a vessel and using such force as is necessary,^[75] the exercise of which, without authority, may amount to a tort.

16.64  It is by no means certain or likely that a public authority would be held liable in tort for negligence in the performance of its powers, due to the difficulty of establishing either a duty of care in negligence arising out of the creation of a statutory power,^[76] or a civil right of action for breach of statutory duty. However, there are cases where a public authority has been held liable for negligent misstatement^[77] or negligent conduct in operational matters.^[78]

Giving evidence and making complaints

16.65  Some statutes provide an immunity to people who make complaints or give evidence to certain government agencies, particularly regulators. For example, s 37 of the Ombudsman Act 1976 (Cth) provides that civil proceedings ‘do not lie against a person in respect of loss, damage or injury of any kind suffered by another person’ because they made a complaint or a statement or gave a document or information to the Ombudsman or a member of the Ombudsman’s staff, for the purposes of the Act.^[79]

16.66  Examples of similar provisions include:

• Enhancing Online Safety for Children Act 2015 (Cth) s 89;

• Freedom of Information Act 1982 (Cth) ss 55Z, 84; and

• Interactive Gambling Act 2001 (Cth) s 23.

Public interest disclosures

16.67  The Public Interest Disclosure Act 2013 (Cth) features a more detailed immunity scheme for public officials who make a ‘public interest disclosure’ in relation to certain types of conduct, such as illegal conduct, or conduct that perverts the course of justice, or constitutes maladministration, or is an abuse of public trust.^[80]

Consular and diplomatic immunities

16.68  It is less common for a statute to provide immunity to a non-government person or entity. An example is the immunity given to members of a foreign consular or diplomatic service by the Consular Privileges and Immunities Act 1972 (Cth)and the Diplomatic Privileges and Immunities Act 1967 (Cth).

Industrial action

16.69  Statutes protect industrial action that might otherwise amount to a tort. The limited immunity provided to ‘protected industrial action’ is unusual in that it applies to individuals or non-government groups such as employee or employer associations.

16.70  So far as the common law is concerned, Professors Breen Creighton and Andrew Stewart write, ‘virtually all industrial action would be unlawful as a tort, a breach of contract and, frequently, a crime’.^[81] Relevant torts might include trespass, private nuisance, conspiracy and intentional interference with a contract.

16.71  Creighton and Stewart note that, unlike the United Kingdom, Australia has ‘little history of legislative protection against common law liability for industrial action’.^[82] However, there is now some protection. An immunity provision for protected industrial action, subject to prescribed limitations, is in s 415 of the Fair Work Act 2009 (Cth). It is not a ‘blanket’ immunity and it applies to those taking or organising industrial action in relation to a new single-enterprise agreement.^[83] Section 415 provides:

(1)        No action lies under any law (whether written or unwritten) in force in a State or Territory in relation to any industrial action that is protected industrial action unless the industrial action has involved or is likely to involve:

(a)     personal injury; or

(b)    wilful or reckless destruction of, or damage to, property; or

(c)     the unlawful taking, keeping or use of property.

(2)        However, subsection (1) does not prevent an action for defamation being brought in relation to anything that occurred in the course of industrial action.

16.72  The immunity in Australia originally had the object of encouraging parties to bring their disputes within the industrial relations and dispute resolution framework of 1993. This new framework represented a ‘shift away from conciliation and arbitration in favour of formalised enterprise bargaining’,^[84] an essential element of which is said to be ‘the capacity of the participants in the process to elect to take industrial action in order to exert pressure upon the other parties’.^[85] This in turn called for legislative protection against common law liability.^[86] The overall object of the scheme was that disputes proceed in an orderly, safe and fair way, without duress; that parties be properly and efficiently represented; and that risks to those caught up in the dispute be minimised.^[87]

16.73  The appropriate scope of the immunity is the subject of considerable debate. The statutory limitations on this immunity affect other rights, particularly freedom of association.^[88]

16.74  The justification of immunities for protected industrial action should be considered in the broader context of industrial relations law and in light of other important rights, including freedom of association.