Testing the Boundaries of Administrative Detention Through the Tort of False Imprisonment

Abstract

The broad administrative power of detention conferred by the Migration Act has been exercised in a manner which fails to accord due regard to the right to personal liberty. At least 250 individuals who fall outside the ambit of its detention provisions have been detained.Many of these individuals have been among the most vulnerable and marginalised members of Australian society and their detention has raised concerns about Australia's compliance with its international human rights obligations. This article examines the scope for the tort of false imprisonment to address concerns arising from wrongful immigration detention. The philosophical compatibility of tort law and human rights and the extent to which human rights arguments may inform Australia's common law are explored with reference to the way in which false imprisonment has been, and may in future be, invoked to address incursions into the right to personal liberty.

Keywords: false imprisonment, immigration detention