My apologies for clogging up your inboxes yet again, but I have just noticed a very interesting issue that was the subject of some comment in another High Court decision handed down today, Haskins v The Commonwealth [2011] HCA 28 (10 August 2011) http://www.austlii.edu.au/au/cases/cth/HCA/2011/28.html . There are fascinating Chapter III Constitutional issues which I will leave for Constitutional lawyers to comment on somewhere else, but there is a tort issue as well. Mr Haskins, a sailor, had been disciplined by a military court and subject to detention for a time. Subsequently the High Court held that the court concerned was unconstitutional and invalid. Parliament then tried to recover the situation by legislatively deeming the imposition of penalties on service personnel as if the court had been valid. One limb of Mr Haskin's argument was that, as it had been shown that he had not been validly detained under lawful authority, he had an action for false imprisonment against the Commonwealth- and if the deeming legislation took that action away, this amounted to "deprivation of property" (his chose in action) for which he was entitled to just terms compensation.

So the issue came down to this: could an officer of the armed forces be liable for false imprisonment in detaining a fellow serviceman, under what appeared on their face to be perfectly valid orders, when later it emerged that those orders were unlawful? The majority of the Court held that the answer was, No. 

I think there is more to be said, to be frank. It is a well-known feature of the action for false imprisonment that it can be committed "innocently"- if there was no lawful authority, it matters not that the person committing the act thought reasonably that there was. I was surprised that the majority did not address itself to these cases, such as R v Governor of Brockhill Prison ex p Evans (no 2)[2001] 2 AC 19 or Cowell v Corrective Services Commission (1988) 13 NSWLR 714. Indeed, members of this list may recall that we discussed similar issues recently raised by Lumba v Secretary of State for the Home Dept [2011] UKSC 12 (23 March 2011). It is possible that on a careful consideration of the authorities the military discipline situation is so different that a different result is warranted. But one would like to have seen some discussion of the cases. The conclusion of the majority was presented very starkly at [67]:

"To permit the plaintiff to maintain an action against those who executed that punishment (whether service police or the officer in charge of the Corrective Establishment) would be destructive of discipline. Obedience to lawful command is at the heart of a disciplined and effective defence force. To allow an action for false imprisonment to be brought by one member of the services against another where that other was acting in obedience to orders of superior officers implementing disciplinary decisions that, on their face, were lawful orders would be deeply disruptive of what is a necessary and defining characteristic of the defence force. It would be destructive of discipline because to hold that an action lies would necessarily entail that a subordinate to whom an apparently lawful order was directed must either question and disobey the order, or take the risk of incurring a personal liability in tort."

Similar issues are raised, of course, by previous cases in the "civilian world" holding that a wrong has been committed where detention was not in fact justified even if thought to be so at the time. If the members of the armed forces are to enjoy the protections offered by the law of torts, careful consideration needs to be given here. Cases where unlawful punishments are imposed will hopefully be rare. But it would seem to be just to allow compensation for deprivation of the right to liberty where it was in fact unlawful at the time.

Regards

Neil