Common(wealth) Knowledge #81: Bringing lawsuits against the government

Senator Linda Reynolds’ case against the ACT DPP decreases governmental immunity.

Today, civil lawsuits involving governments and royals are commonplace. Prince Harry is suing the Daily Mail for alleged defamation, while Liberal Senator Linda Reynolds sues the Australian Capital Territory government and its former Director of Public Prosecutions over allegedly defamatory statements by the DPP. But this wasn’t always the case.

The monarch, as the physical embodiment of the Crown, has different legal obligations and protections than those of private citizens. They cannot be taken to court, because all laws are made in their name. King Charles III cannot grant himself a driver's licence, as those are granted in his own name. He has the right to drive without one.

The monarch also cannot commit treason, because treason is a crime against the Crown. The monarch cannot commit treason against themselves. This means that the execution of King Charles I for treason was actually unlawful, as he pointed out at the time.

This protection has historically been granted to governments, with two exceptions.

In the Communist Party Case (1951), Justice Fullagar famously said that “a stream cannot rise higher than its source,’ as water cannot flow uphill. The only reason the Commonwealth government can be taken to court is for passing legislation that violates the Australian Constitution, as the Constitution is the source of Parliament’s power.

In the Communist Party Case, the Commonwealth government’s legislation to ban the Australian Constitution was found to be outside of the powers granted to Parliament by the Constitution, so it was unlawful.

Similarly, Section 109 of the Australian Constitution prevents states from passing legislation that is inconsistent with lawful Commonwealth legislation, to the extent of any inconsistency. Section 80 has the same effect on the Northern Territory and ACT.

Secondly, Section 75(v) of the Constitution allows private citizens to seek judicial review by the courts over the validity of a decision made by a member of the executive. As recent decisions suggest, this is most commonly used in immigration settings.

But suing a government official or any other member of the royal family is lawful, provided that they are being sued in their personal capacity. The same is true in reverse.

This right was developed following the case Prince Albert v Strange [1849], when Prince Albert sued Strange for distributing unauthorised drawings of the royal family. Prince Albert ultimately won.

Although Queen Victoria was also portrayed in those caricatures, her role as the Crown prevents her from being able to act in a personal capacity, and that includes preventing her from suing.

Prince Albert helped set a precedent for the full participation of the royals in the British legal system, an action that now allows Prince Harry to sue the Daily Mail.

Governments cannot sue private citizens for defamation. This is especially true after the development of the implied freedom of political communication, which protects criticism of the government as a fundamental part of a democratic system.

However, government employees and elected representatives can sue if the alleged defamatory comments are made against them directly about what they do as part of the government.

The alleged defamatory comments made by former Shane Drumgold complained of political interference in the rape case between Brittany Higgins and Bruce Lehrmann.

These alleged comments were made against the Senator in her personal capacity as a member of the government. Similarly, although Drumgold was a part of the government, these comments were also made in his personal capacity, so Senator Reynolds has the right to sue.

As Drumgold’s employer, the ACT government is also sued by Senator Reynolds. This is known as ‘vicarious liability,’ as Senator Reynolds alleges that the comments were made in the course of his employment by the government, and so they are also liable, as his employer.

This raises the question of whether a government employee can simultaneously act in a personal capacity and act within the scope of his employment by the government, which has not been tested before the courts yet.

However, there is one big difference between the UK and Australia when it comes to defamation lawsuits against the government, and it is a very new development.

Both countries have passed legislation allowing for certain cases to be brought against the government. In Australia, this is Section 56 the Judiciary Act 1903 (Cth). But these rules are narrow, and can be changed by Parliament at any time.

However, in Commonwealth v Mewett (1997), the High Court agreed that governments could be sued for defamation. But it went one step further. Justices Gummow and Kirby, with whom Chief Justice Brennan and Justice Gaudron agreed, in separate judgments, said that this was a constitutional right, found in Section 75(iii).

Justices Gummow and Kirby said that this right, which included defamation, was “not encompassed by the common law developed in England.”

And this brings us back to Justice Fullagar’s statement. In the UK, Parliament is superior to the common law of judges, and can override it through legislation. But, in Australia, the source is Section 75(iii) of the Constitution, and it flows down to Parliament, which is the spring. As the Constitution is superior to the Commonwealth Parliament, this right cannot be overwritten or repealed.

As Senator Reynolds’ proceedings have only just been lodged with the Western Australia Supreme Court, it is unclear whether she will also rely on Mewett.

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