From: Andrew Tettenborn <>
To: Neil Foster <>
Date: 08/06/2022 07:44:54 UTC
Subject: Re: ODG: HCA on false imprisonment, Thoms v Cth

I suspect, with regret (as a liberty man) that the HCA has got it right here. -Andrew

On 08/06/2022 03:08, Neil Foster wrote:

Dear Colleagues;

The decision of the High Court of Australia today in Thoms v Commonwealth of Australia [2022] HCA 20  (8 June 2022) holds that where a person has been detained by a government official under a law which allows detention in case of “reasonable suspicion” that they are an “unlawful non-citizen”, that detention (if effected under such a reasonable suspicion at the time) will not be held to be invalid for the purposes of an action for damages for false imprisonment, even if a post-detention decision of the High Court rules that they should not have been detained.

Actually as those who follow such things will know, that brief description of the reasons in the case also could have been applied to the previous decision of the High Court in Ruddock v Taylor (2005) 222 CLR 612, and indeed all members of the court here in Thoms said that the case was on all fours with Ruddock, and that since no application had been made to overturn that previous decision, Mr Thoms could not succeed in his claim for damages.

The facts of Mr Thoms’ case were of great public interest in Australia. He was a New Zealand citizen and not lawfully in Australia, but he was of indigenous heritage, and in Love v The Commonwealth (2020) 270 CLR 152 he and another indigenous man, Mr Love, were held by majority not to be “aliens” (despite not being citizens) and hence not able to be deported under legislation relying on the “aliens” power under the Constitution. As soon as Love was handed down, Mr Thoms was released from detention.

But in his action for false imprisonment relating to the time that he had been detained, the High Court here rules that the relevant officials had been entitled under s 189 of the Migration Act 1958 (Cth) to detain him, having a “reasonable suspicion” based on the facts and law as known at the time that he was liable to deportation. While of course the law of Australia on the issue was in effect retrospectively changed by the decision in Love, at the time of detention it was reasonable for the officers not to know this.

How, then, does this decision sit with other common law cases from Australia and elsewhere holding that a detention thought to be lawful at the time can entitle a person to damages for false imprisonment if found later to be unlawful- such as in Cowell v Corrective Services Commission of NSW (1988) 13 NSWLR 714, where a prisoner had served a longer time than he should have because entitlement to remission miscalculated; and R v Governor of Her Majesty's Prison Brockhill ex parte Evans [2000] UKHL 48 where the wrongful imprisonment was a result of the prison authorities following a view of the relevant legislation which was subsequently over-ruled by the House of Lords?

It seems to me that the difference lies in the specific authority to detain. I am pretty sure that neither in Cowell or Brockhill was the power expressed in terms of “reasonable view” of the time limits. But here the authorising power explicitly incorporated a criterion of “reasonable suspicion”, which recognised the reality that some people detained under s 189 may turn out on further investigation to be lawfully present in Australia. There was then a constitutional issue- did the aliens or immigration powers support such a law? All members of the court held that it did, though expressing the outer limits of laws that could be enacted in slightly different ways.

In any event, both logic and the previous decision in Ruddock v Taylor meant that the decision of the officers to detain here was valid because, on the facts and law as known at the time, they had a reasonable suspicion that Mr Thoms was liable to detention. Hence he could not recover damages for false imprisonment.





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