Deficiencies in Australian Tort Law: Assault and Imprisonment

This essay provides an analysis of the deficiencies within the Australian tort law framework, specifically focusing on the areas of assault and false imprisonment. The essay identifies several key loopholes, including inadequate sentencing policies for assault, particularly in one-punch attack cases, and the abuse of power by law enforcement. It also examines the difficulties in establishing assault cases and the issues surrounding false imprisonment, such as abuse of power by police and the impact of shopkeeper's privilege. The author concludes by emphasizing the need for stricter laws and regulations to prevent misuse and manipulation of legal processes, ensuring that the rights of individuals are protected. The essay highlights the importance of robust legal frameworks to deter misconduct and uphold justice within the Australian legal system.

RUNNING HEAD: TORT LAW
Tort Law

TORT LAW
Over last few years, various amendments to the current legislation have been introduced to
make the law more stringent in order to punish the wrongdoer. However, this law contains
various loopholes, which gives benefit to the other parties. This essay will define about the
deficiencies in the current laws relating to assault and false imprisonment.
An attack is any direct and intentional danger from an individual putting the plaintiff in
appropriate fear of an imminent interaction with the individual of the plaintiff, either by the
defendant or by some individual or object within the command of the prosecutor. The
punishment for assault in Australia is much lower than in other countries. In recent years,
lawyers have been calling for mandatory minimum sentences policies for one-punch attack.
The Victorian Liberal Government introduced new legislation in 2014.1 The main purpose of
this legislation was to amend the current law and insert new provisions relating to one punch
attack in crimes act and to insert into the Sentencing Act three new sections requiring a
statutory minimum sentence of ten years imprisonment for all homicide instances involving a
single punch or strike homicide in conditions of gross violence.2
Recently, it has been seen that most criminals are not properly convicted due to lack of
effective sentencing policies. Most of the criminals are only arrested but are not punished due
to lack of strict laws. In a report to the legislative assessment due in the first quarter of 2017,
Dr. Quilter said that her study on WA legislation showed 40% of prosecutions involving
males murdering their spouse or ex-partner in conditions where a record of violence and
abuse had occurred. The one-punch law led in fewer fines than convicted for homicide. Thus,
the first issue or deficiency in current law relating to assault is less sentencing policies.
The other loophole in the current legislation on assault is abuse of power, i.e. the current
legislation on assault gives police officers wide powers to arrest the culprit.3 In the case of
State of NSW v Ibbett4, police officers were held liable for assault and related offences. In this
case, police officers without authority invaded privacy and pointed a gun at the mother of the
suspect without justification. They were held liable by the court under abuse of power.
Another flaws relating to current law dealing with assault is difficulty in establishing case
under assault. As per the law, relating to assault in Australia, in past few years it has been
seen that many cases have not been reported under the said offence. In assault, the liability is
1 Crimes Act 1958 (Vic) s 4A
2 Sentencing Amendment (Coward’s Punch Manslaughter and other Matters) Act 2014
3 David Lanham, David Wood, Bronwyn Bartel and Rob Evans, Criminal Laws in Australia (Federation Press,
2006) 526
4 (2005) 65 NSWLR 168
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TORT LAW
on the prosecution to establish a case and to prove the guilt of culprit beyond reasonable
doubt. Thus, at times it becomes very difficult for the prosecution to establish his case that
results in acquittal of the accused.
Thus, primarily these were the main loopholes in the current legislation relating to assault and
one punch assault in Australia.
False imprisonment is a deliberate, complete and immediate restriction on the freedom of a
person. The main loophole in the current legislation relating to false imprisonment is abuse of
powers.5 The police officers take personal revenge by arresting innocent persons which
results in unnecessary legal implications.6 In the case of Coyle v Sate of NSW 7, defendant
was traveling with his wife and they were intoxicated. The police officer confronted them and
an altercation occurred due to which the police officer handcuffed them and taken to the
police station. During their detention they were abused by the police officers. The police
officer under assault filed suit but the court did not held them guilty. As a result, both
aggrieved filed a case against the police officer for false imprisonment as they were lawfully
attempting to board the train. The court held police officers liable and said that they had
abused their powers.
Another loophole is amount of damages awarded to the parties. To recover these damages
false cases are reported. In order to claim damages false reports are reported. In recent years,
it has seen many false reports have been lodged under the offence of false imprisonment
either to seek revenge or to claim for damages. As to establish case under false imprisonment,
the procedure is not stringent so it becomes easy to establish a case under such offence.
The last deficiency in the legislation relating to false imprisonment is that laws relating to
shopkeeper’s privilege defense. In this, the shopkeepers on the basis of their belief, have
authority to detain the person who stole things. At times innocent people face difficulty
unnecessary. They have to face legal implication and court proceedings. In recent years, false
report have been lodged relating to shopkeepers privilege defense. Laws must be made with
strict rules and regulation to avoid the false charges relating to this offence.
Thus to conclude it can be determined that, though laws are made for the benefit of the
people and humanity at large, but still some or the other loopholes takes place in it. That
5 Mark Lunney, A history of Australian Tort Law (Cambridge University, 2017) 308
6 Pamel Stewart and Anita Stuhmcke, Australian Principles Of Tort Law ( Federation Press, 2017) 722
7 (2006) NSWCA 95
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deficiencies or the loopholes are misused by the people to fulfill their illegal demands.
Therefore, the governments make such strict actions against these people who are misusing
the laws as well as laws and regulations must be enhanced in such a way that it cannot be
misused. The misuse of laws, damages or hampers the mentality of the innocent people who
are wrongfully confined in the prisons. Thus, the laws and regulations related to the assault
and false imprisonment must be very tough so that no individual can misuse or manipulate
them with their accords.
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Work Cited
A- Books/Articles/Reports
Lanham, David, David Wood, Bronwyn Bartel and Rob Evans, Criminal Laws in
Australia (Federation Press, 2006)
Lunney, Mark, A history of Australian Tort Law (Cambridge University, 2017)
Stewart, Pamel and Anita Stuhmcke, Australian Principles Of Tort Law ( Federation
Press, 2017)
B- Cases
State of NSW v Ibbett (2005) 65 NSWLR 168
Coyle v Sate of NSW (2006) NSWCA 95
C- Legislation
Crimes Act 1958 (Vic) s 4A
Sentencing Amendment (Coward’s Punch Manslaughter and other Matters) Act 2014
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