Discrimination

What is False Imprisonment?

TGB Partner Mal Byrne outlines the elements of the tort of false imprisonment and draws attention to the controversial current case of potential false imprisonment in relation to the asylum seekers held in the Manus Island Detention Centre in Papua New Guinea.

TGB Partner Mal Byrne outlines the elements of the tort of false imprisonment and draws attention to the controversial current case of potential false imprisonment in relation to the asylum seekers held in the Manus Island Detention Centre in Papua New Guinea.


The tort of false (or unlawful) imprisonment is committed when a person confines another person intentionally or even negligently within a fixed area without legal authority (Torts Cases and Commentary – Luntz).  The right to freedom from interference with personal liberty is regarded as a fundamental, legal right.  The sole defence to the tort of false imprisonment is the defence of legal authority.

A person can only be imprisoned if there is no reasonable means of escape.  For example, passengers unlawfully imprisoned in a motor car were deemed to be imprisoned where the only escape was to jump from the moving car Zanker v Vartzokas and Burton and Davie [1953 St R Qd 26].

Clearly, kidnapping someone is false imprisonment.  Private citizens can arrest or detain people where an offence has been committed, but police must be contacted immediately. Examples are security guards detaining alleged shop lifters, hotels attempting to detain guests who do not pay their bill, or security guards in hotels detaining unruly patrons who may have committed offences.

The four common situations where public authorities detain people lawfully are as follows:

1. A person sentenced by a Court to serve a term of imprisonment for committing an offence or offences or who has been arrested on suspicion of committing an offence but has been refused bail;

2. Police arresting suspected offenders;

3. Hospitals or doctors detaining people who are mentally ill;

4. Immigration detention.

Police of course have the power to arrest and detain suspected defenders but those powers are limited.  People have rights to apply for bail and one circumstance where negligent false imprisonment sometimes occurs is where the Courts and/or police administering the bail make administrative errors leading to people spending additional time on remand unnecessarily.   People in these circumstances can sue for false imprisonment although if the additional detention only amounts to a period of hours, the question is whether or not any significant damages would arise in those circumstances.

Under the Mental Health Act, doctors and hospitals have the power to detain patients who are a significant risk to themselves or to others.  Once again, there are procedural and substantial requirements regarding the power to detain.  The patients have a right of appeal both to the Guardianship Board and subsequently to the District Court.

The most famous case of false imprisonment within the immigration detention system is the case of Cornelia Rau who was an Australian resident detained in the Baxter Immigration detention Centre for a period of 10 months when the Department of Immigration mistakenly assumed that she was an unlawful migrant when in fact she was a person with a untreated mental illness.  The seriousness that the courts take with respect to the depravation of liberty was reflected in the compensation that Ms Rau received which was in the order of 2.6 million dollars.

The controversial current case of potential false imprisonment is the case of the asylum seekers held in the Manus Island Detention Centre in Papua New Guinea.  The Papua New Guinea Supreme Court has held that the detention of the asylum seekers in the facility is unlawful.  The Papua New Guinea Constitution has the right to liberty enshrined in it and this played a significant role in the decision.  The Australian Constitution has no such right.  The detainees are now launching a class action against both the Commonwealth government and Papua New Guinea government seeking compensation for what they argue is their false imprisonment and the outcome of that case will be of great interest.

For further information or assistance, contact your nearest TGB location