Private Law Theory

ABSTRACT
Government liability in tort has long presented difficulties for the common law, particularly when it comes to the exercise of statutory powers. The courts have grappled with difficult questions regarding the extent to which common law liability can be superimposed on a statutory function, adopting various common law tools in the attempt to confine liability within appropriate bounds. Alongside the courts, the legislature has also played a key, and often defining, role in shaping government liability in tort. This chapter explores the tools deployed by the legislature in this context. Some of these tools are overt, including civil liability reform and good faith protection clauses. Other techniques are more subtle, involving the conferral of power on terms that narrow the scope of tortious liability. In all cases, it is possible to view government liability for the performance of statutory functions as a delicately balanced partnership between the courts and the parliament.

Rock, Ellen, Government Liability and the Will of Parliament (February 1, 2022) in John Eldridge, David Rolph and Tim Pilkington (eds), Australian Tort Law in the 21st Century (Federation Press, 2023) (Forthcoming).