Page 2319 - Week 08 - Tuesday, 17 August 1993
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I do raise, perhaps in an academic sense, a concern about the issue of the criminal liability of the Crown. I do not propose any amendments arising out of this concern, but I believe that it is appropriate to raise the issues and put them before the Assembly for its consideration. The Government cites a couple of reasons why the Crown should not be bound in criminal law. The Minister's presentation speech states:
It is a constitutional nonsense for the Crown to prosecute the Crown ... if an agent acts with lawful authority as expressed by statute or statutory instrument, then criminal liability should not attach to the person for acting in that way.
There seem to be two reasons being cited here. One is that it is a nonsense to talk about the Crown prosecuting the Crown, and the other is that a person who acts for the Crown as a servant or an agent and who acts with lawful authority should not be liable criminally for the acts that he or she commits.
If I can take the second of those two first, I would not suggest that a person should be personally liable for an act which they have undertaken with lawful authority. That would damage the general principles of the carer's responsibility that we have developed in our system of law. However, I question the assumption that in those circumstances the entity for whom the servant or agent acts should not be liable even in criminal law. If some level of government - let us say that it is a duly authorised SES officer or a departmental head, or even a Minister, for that matter - were to duly authorise an illegal act to occur, a criminal act, why should not criminal liability be created on the part of that particular officer in the entity for which he or she acts?
The response to that might be that you cannot attribute actions of a particular public servant or Minister to the actions of the Government itself; you would have to separate those two things; that, if a Minister or a public servant acts illegally, he or she must have been acting outside the authority, outside the intention, of the Government. That notion is something of a myth. We have had countless examples through political history recently, ranging from Watergate through to the Rex Jackson affair, and many other examples that might spring to mind, where various senior members of Executives have acted not only illegally and criminally but with illegal or criminal intent.
You can in turn say, "How can you fine or imprison the government or the Executive for the duly authorised actions which are taken by its servants?". There are difficulties with that concept. It is impossible, or it should be impossible, I think, to imprison a member of the Executive for an action which has been authorised, even if it is a criminal action. Although the temptation to have a Minister hauled away in the event of some stuff-up in the department is a very tempting one, I do not think we would go quite that far. Similarly, there is a problem with fining the Government. After all, the Government actually receives the fines; Consolidated Revenue actually receives the fines that are levied. So the idea of Caesar fining Caesar is something of a nonsense.
That to one side, there is still the principle. We are living now in an age where government is being more open, where government is being more accountable and more accessible. At least that is the jargon, the rhetoric, we are all espousing these days. We accept the principle - and this is the principle that underlies these two Bills tonight - that government should be liable for its actions, it should be responsible for its actions, under the laws that it is responsible for administering.
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