The right to sue in tort

16.1       A tort is a legal wrong which one person or entity (the tortfeasor) commits against another person or entity and for which the usual remedy is an award of damages. Many torts protect fundamental liberties, such as personal liberty, and fundamental rights, such as property rights, and provide protection from interferences by other people or entities and by the Crown. In short, torts protect people from wrongful conduct by others and give claimants a right to sue for compensation or possibly an injunction to restrain the conduct. Like criminal laws, laws creating torts also have a normative or regulatory effect on conduct in society:

When the legislature or courts make conduct a tort they mean, by stamping it as wrongful, to forbid or discourage it or, at a minimum, to warn those who indulge in it of the liability they may incur.[1]

16.2       A statute authorising conduct that would otherwise be a tort may therefore reduce the legal protection of people from interferences with their rights and freedoms.

16.3       This chapter discusses: the source and rationale of tort law; how the right to sue in tort is protected from statutory encroachment; and when laws that authorise what would otherwise be a tort may be justified.[2] The ALRC calls for submissions on two questions.

Question 16–1          What general principles or criteria should be applied to help determine whether a law that authorises what would otherwise be a tort is justified?

Question 16–2          Which Commonwealth laws unjustifiably authorise what would otherwise be a tort, and why are these laws unjustified?

Common law

16.4       Torts are generally created by the common law,[3] although there are statutory wrongs which are analogous to torts.[4] In addition, many statutes extend[5] or limit[6] tort remedies, while statutory duties and powers may form the basis of duties or liability in tort, either in the common law tort of breach of statutory duty[7] or the common law tort of negligence.[8] Common law torts mostly have a long history, some dating as far back as the 13th century.[9]

16.5       Although a tort may also amount to a crime, claims in torts are civil claims brought by the individual concerned, who seeks compensation from the tortfeasor for injury or loss. Torts may be committed by individuals, corporate entities or public authorities, including government departments or agencies. Tort liability includes both personal liability and vicarious liability (for torts committed by employees or agents).

16.6       Torts include assault, battery, false imprisonment, trespass to land or goods, conversion of goods, private and public nuisance, intimidation, deceit, and the very expansive tort of negligence. Negligence occurs in many different social contexts, including on the roads, in the workplace, or through negligent medical care or professional services. The common law tort of defamation has long protected personal reputation from untruthful attacks.[10]

16.7       While not all consequences of tortious conduct result in an award of damages, generally people have a right to legal redress if they can prove on the balance of probabilities that they have been the victim of a tort. In some cases, the affected person may seek an injunction from the courts to prevent the tort happening or continuing.[11]

Australian Constitution

16.8       The Australian Constitution does not create rights in tort nor does it expressly authorise any conduct that would otherwise constitute a tort.

16.9       However, the implied constitutional freedom of political communication, recognised in a series of decisions of the High Court of Australia, has been held to preclude the unqualified application of the common law of defamation:

The common law of libel and slander could not be developed inconsistently with the Constitution, for the common law’s protection of personal reputation must admit as an exception that qualified freedom to discuss government and politics which is required by the Constitution.[12]

16.10   However, the implied constitutional freedom, recognised by the High Court as a restriction on the ability of people to sue for defamation, is not absolute. In Lange v ABC (1997), the High Court formulated the constitutional defence as one of ‘qualified privilege’ to speak freely on government and political matters, drawing in concepts of reasonableness and subject to an absence of malice on the part of the speaker.[13]

Principle of legality

16.11   The principle of legality provides some protection from statutes that authorise what would otherwise be a tort.[14] Courts are reluctant to hold that a statute authorises the commission of what would otherwise be a tort, unless the statute does so clearly and unambiguously.

16.12   For example, in Coco v The Queen (1994),[15] the High Court considered whether s 43(2)(c) of the Invasion of Privacy Act 1971 (Qld), which conferred authority on a judge to authorize the installation and maintenance of a listening device, extended to authorising entry onto private premises to install the device. They held it did not authorise what would be otherwise be a trespass onto the accused’s land to install the device. The majority said:

Every unauthorized entry upon private property is a trespass, the right of a person in possession or entitled to possession of premises to exclude others from those premises being a fundamental common law right. In accordance with that principle, a police officer who enters or remains on private property without the leave or licence of the person in possession or entitled to possession commits a trespass unless the entry or presence on the premises is authorized or excused by law.

Statutory authority to engage in what otherwise would be tortious conduct must be clearly expressed in unmistakable and unambiguous language. Indeed, it has been said that the presumption is that, in the absence of express provision to the contrary, the legislature did not intend to authorize what would otherwise have been tortious conduct. But the presumption is rebuttable and will be displaced if there is a clear implication that authority to enter or remain upon private property was intended. Such an implication may be made, in some circumstances, if it is necessary to prevent the statutory provisions from becoming inoperative or meaningless. However, as Gaudron and McHugh JJ observed in Plenty v Dillon (1991): ‘Inconvenience in carrying out an object authorized by legislation is not a ground for eroding fundamental common law rights’.[16]

International law and bills of rights

16.13   While international covenants typically do not refer to the right of an individual not to be subject to tortious conduct in such terms, many of their articles set out fundamental freedoms and rights which might be infringed by a person committing a tort.

16.14   Torture, for example, would constitute the torts of assault and/or battery and breach art 7 of the International Covenant on Civil and Political Rights. Imprisoning a person without lawful authority would constitute the tort of false imprisonment and breach art 9 of the ICCPR. Defaming a person would constitute the tort of defamation and breach art 17. While there is as yet no settled tort of invasion of privacy in Australian common law, the equitable action of breach of confidence protects correspondence from interferences in breach of art 17.[17]

16.15   International instruments cannot be used to ‘override clear and valid provisions of Australian national law’.[18] However, where a statute is ambiguous, courts will generally favour a construction that accords with Australia’s international obligations.[19]