Justifications for encroachments

16.16   Authorising what would otherwise be a tort has been justified for a number of reasons. Because torts may be committed in many different social contexts, the justifications for statutes authorising or granting immunity or a defence to what would otherwise be tortious conduct will vary and depend closely on the particular context. Justifications commonly include:

  • law enforcement and prevention of crime;
  • national security;
  • public health;
  • protecting vulnerable people from hurting themselves; and
  • the encouragement of desirable practices by imposing conditions for the immunity.

16.17   Statutes give various powers to Commonwealth law enforcement agencies, customs officials, defence personnel, immigration officials, security agencies and others. These include powers to arrest or detain persons, to seize or retain property, and to carry out intrusive investigations—conduct that might otherwise amount to a tort. These powers are commonly justified on the grounds that they are necessary to prevent crime and terrorism and to otherwise protect national security. They may also be necessary to properly enforce laws, including customs, quarantine and immigration laws.

16.18   Statutes providing immunity from tort liability are generally based, not on the justification for particular intentional acts or omissions out of social necessity, but on the need to give general protection to socially worthwhile agencies, activities or services from liability for negligence or strict liability. This applies particularly to various forms of immunity given to government agencies discussed in Ch 17.[20]

16.19   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. It may be seen to have several justifications, differing over time as community attitudes to workplace disputes have changed. The immunity in Australia originally had the object of encouraging parties to bring their disputes within the new industrial relations and dispute resolution framework of 1993. It also regulates conduct by setting out conditions for the protection. The overall object is that disputes proceed in an orderly, safe and fair way, without duress; that parties are properly and efficiently represented; and that undue risks to those caught up in the dispute are minimised.[21]

16.20   A statute may restrict a person’s right to sue another in tort in several ways, for example, by:

  • authorising certain conduct that would otherwise be a tort;
  • providing a defence of statutory authority to conduct or activities that may, particularly if reasonable care is not taken, constitute a tort;[22] and
  • giving a person an exemption or immunity from civil liability in tort.[23]

16.21   Many laws that authorise what would otherwise be a tort are no doubt justified. The ALRC does not consider it useful to attempt to list or analyse the justification for every statutory provision where authority is given to Commonwealth agencies or officers to arrest or detain a person, to seize or detain property, or to enter property, because such conduct would otherwise amount to a tort. The ALRC therefore invites submissions identifying those Commonwealth laws that authorise torts without good justification, and explaining why these laws are not justified.