Tortious conduct

Binsaris v Northern Territory [2020] HCA 22

When officers at the Don Dale Youth Detention Centre used tear gas on young detainees after a ‘serious disturbance’ causing property damage, the detainees sued for damages asserting these actions were in breach of legislation & unlawful1.  All judges agreed.

One judge (at [25]) emphasised the principle that statutory authority to engage in what would otherwise be tortious conduct ‘must be clearly expressed in unmistakable and unambiguous language’2.  This legislation did not pass that test because its terms were far too general.  While realities must be taken into account3, intentional action involving a calculated choice to do harm is not.

This principle is from Episode 63 of interpretation NOW!


1 s 62(2) of the Prisons (Correctional Services) Act (NT).

2 Coco (1994) 179 CLR 427 (at 436), Wilson (1950) 51 SR (NSW) 26 (at 28-29).

3 R (Laporte) [2006] UKHL 55 (at [83]) for example, cf Episodes 37, 46 & 61.