Legal maxim: 'He who fails to assert his rights has none'.
'Rex Non Potest Peccare',
Meaning "The King Can Do No Wrong"
'Rex Non Potest Peccare',
Meaning "The King Can Do No Wrong"
Crown Private People [Te Hapū/] / Man Private Property
[He Mana Tāngata Mana Whenua]
[He Mana Tāngata Mana Whenua]
Crown immunity, or Sovereign immunity, is a legal doctrine whereby a sovereign or state cannot commit a legal wrong and is immune to civil suit or criminal prosecution, strictly speaking in modern texts in its own courts. A similar, stronger rule as regards foreign courts is named state immunity.
In its older sense, sovereign immunity is the original forebear of state immunity based on the classical concept of sovereignty in the sense that a sovereign could not be subjected without his or her approval to the jurisdiction of another.
There are two forms of sovereign immunity:
Immunity from suit means that neither a sovereign/head of state in person nor any in absentia or representative form (nor to a lesser extent the state) can be a defendant or subject of court proceedings, nor in most equivalent forums such as under arbitration awards and tribunal awards/damages. Immunity from enforcement means that even if a person succeeds in any way against their sovereign or state, they and the judgment may find itself without means of enforcement. Separation of powers or natural justice coupled with a political status other than a totalitarian state dictates there be broad exceptions to immunity such as statutes which expressly bind the state (a prime example being constitutional laws) and judicial review.
Furthermore, sovereign immunity of a state entity may be waived. A state entity may waive its immunity by:
In constitutional monarchies the sovereign is the historical origin of the authority which creates the courts. Thus the courts had no power to compel the sovereign to be bound by them as they were created by the sovereign for the protection of his or her subjects.[citation needed] This rule was commonly expressed by the popular legal maxim rex non potest peccare, meaning "the king can do no wrong".[1]
In its older sense, sovereign immunity is the original forebear of state immunity based on the classical concept of sovereignty in the sense that a sovereign could not be subjected without his or her approval to the jurisdiction of another.
There are two forms of sovereign immunity:
- immunity from suit (also known as immunity from jurisdiction or adjudication)
- immunity from enforcement.
Immunity from suit means that neither a sovereign/head of state in person nor any in absentia or representative form (nor to a lesser extent the state) can be a defendant or subject of court proceedings, nor in most equivalent forums such as under arbitration awards and tribunal awards/damages. Immunity from enforcement means that even if a person succeeds in any way against their sovereign or state, they and the judgment may find itself without means of enforcement. Separation of powers or natural justice coupled with a political status other than a totalitarian state dictates there be broad exceptions to immunity such as statutes which expressly bind the state (a prime example being constitutional laws) and judicial review.
Furthermore, sovereign immunity of a state entity may be waived. A state entity may waive its immunity by:
- prior written agreement
- instituting proceedings without claiming immunity
- submitting to jurisdiction as a defendant in a suit
- intervening in or taking any steps in any suit (other than for the purpose of claiming immunity).
In constitutional monarchies the sovereign is the historical origin of the authority which creates the courts. Thus the courts had no power to compel the sovereign to be bound by them as they were created by the sovereign for the protection of his or her subjects.[citation needed] This rule was commonly expressed by the popular legal maxim rex non potest peccare, meaning "the king can do no wrong".[1]
Crown Immunity
Crown Private and Immunity
- This Crown Private Person/Man Private Property Has Crown Immunity.
- At common law, the Crown is immune from prosecution for criminal offences (Cain v Doyle (1946) 72 CLR 409; Bropho v Western Australia (1990) 171 CLR 1; [1990] HCA 24; Jacobsen v Rogers (1995) 182 CLR 572; [1995] HCA 6).
- Courts must interpret statutes in accordance with a rebuttable presumption that criminal laws do not bind the Crown. This presumption may be overcome by clear words or be a necessary implication (Bropho v Western Australia (1990) 171 CLR 1; [1990] HCA 24).
- The High Court reduced the strength of the presumption of Crown immunity in 1990. A court interpreting a statute should consider the perceived strength of the presumption at the time the legislation was enacted (Bropho v Western Australia (1990) 171 CLR 1; [1990] HCA 24).
- The presumption in favour of Crown immunity is weaker in relation to government corporations and related commercial entities. The court must consider the nature of the alleged conduct and whether the corporation, while engaged in that conduct, should be regarded as a manifestation of the Crown, with all the traditional Crown immunities (Roads Corporation v Gerkens, Unreported, VSC, 28 May 1993; Townsville Hospital Board v Townsville City Council (1982) 149 CLR 282; [1982] HCA 48; Superannuation Fund Investment Trust v Commissioner of Stamps (SA) (1979) 145 CLR 330).
- Crown immunity does not extend to employees and agents of the Crown. Employees and agents are subject to the criminal law when acting within the scope of their authority (Jacobsen v Rogers (1995) 182 CLR 572; [1995] HCA 6; Bropho v Western Australia (1990) 171 CLR 1; [1990] HCA 24).[1]
- Crown immunity will usually include immunity from contempt of court. This includes contempt arising from breach of court orders (Crowther v Queensland [2007] 1 Qd R 232; [2006] QCA 308).
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