Administrative law updater: In the course of duty

What is the problem decision-makers face?

Some statutory schemes contain provisions that extend special privileges and immunities to certain people when they are acting in the course of their duties. For example, a correctional or law enforcement officer may be exempt from an otherwise applicable prohibition on carrying a weapon if it is carried in the course of their duties. However, determining when a person is acting in the course of their duties can be a difficult question of statutory construction.

How did Binsaris affect this?

In Binsaris v Northern Territory [2020] HCA 22, the High Court determined that a prison officer who used a form of tear gas to subdue a detainee in a youth detention centre was liable for battery against other detainees who were also exposed to the gas, and that the Northern Territory was vicariously liable for that conduct.

A critical question was whether the officer was acting in the course of his duties when he employed the gas against the detainee. The Court determined that he was not acting in the course of his duties, and was accordingly not protected by a statutory exemption from liability. In our view, the effect of the Court's reasoning in Binsaris is that:

• if a person holds an office under an Act;
• the person is requested to engage in conduct (particularly if the request is made under a second piece of legislation, and they engage in the conduct in a different workplace setting); and
• that conduct is not strictly speaking authorised, required or contemplated by the first Act,

this does not necessarily mean that the conduct should be regarded as the execution of some form of duty under the first Act, even if the request was made by virtue of the person holding an office under that Act.

The facts and decision in Binsaris

Jake Roper was a detainee in the Don Dale Youth Detention Centre. Mr Roper escaped from his cell and began causing a disturbance. Several other detainees began causing a disturbance in their cells as well. The Director of Correctional Services dispatched the Immediate Action Team (IAT) to respond to the disturbance. The IAT was comprised of prison officers from a nearby correctional centre.

The IAT warned Mr Roper to desist from causing the disturbance and he did not comply with that warning. One of the officers deployed a kind of tear gas (CS gas) through a "fogger" in bursts until Mr Roper desisted. Several other detainees were exposed to the CS gas as it was deployed. Those other detainees sued the Territory in tort for battery.

The Weapons Control Act (NT) contained a general prohibition on carrying weapons, which would ordinarily include the CS fogger. However, the combined effect of the Weapons Control Act (NT) and the Prisons (Correctional Services) Act (NT) was that an exemption could apply to the officer if the CS fogger was supplied to him for the performance of his duties as a prison officer, and he was acting in the course of his duties as a prison officer when he used it. The Territory submitted that when, under the youth justice legislation, the superintendent of a detention centre calls upon a prison officer (as defined in the Prisons Act) to assist in an emergency, the prison officer brings with them all of their existing powers as a prison officer under the Prisons Act.

Justices Gordon and Edelman (Chief Justice Kiefel and Justice Keane agreeing) reasoned that the question was not the nature of the direction given by the superintendent but the nature of the officer's conduct and whether that conduct fell within the scope of the officer's duties under the Prisons Act. Although the Prisons Act provided that prison officers may use weapons "as necessary to maintain the security and good order of a prisoner or a prison or a police prison", the Don Dale Youth Detention Centre was neither a prison nor a police prison and its detainees were not prisoners. Accordingly, to the extent that the officer used a weapon in a detention centre, this was not permitted by the Prisons Act and did not form a part of the officer's duties as a prison officer. In a remark potentially directed at Justice Gageler's reasoning, Justices Gordon and Edelman observed that

"[t]hese appeals are to be resolved by applying the fundamental principles of statutory interpretation, which require reading the text of the relevant provisions in their context, paying proper regard to the overall purposes and objects of the statutes... They do not turn on engaging or applying any wider principle."

Justice Gageler dissented on the law, although he reached the same result. He determined that the conduct was authorised by the Prisons Act, which conferred on the officers the common law powers of a constable. However, Justice Gageler also considered that the common law power of a constable to use reasonable force to prevent a breach of the peace confers no immunity from liability if the use of that force injures a bystander, which is what had occurred in this case. Although the conduct was authorised by statute, that was not a defence to liability in battery.

According to the judgments of Justices Gordon and Edelman, and Chief Justice Kiefel and Justice Keane, the Prisons Act did not permit the use of the CS fogger against the appellants and its use constituted a battery. It was not in dispute that if the officers had committed a battery against the appellants, the Territory would be vicariously liable. The matter was remitted to the Supreme Court of the Northern Territory for the assessment of damages.

After Binsaris, here's what you need to remember

The High Court's ruling has particular implications for individuals and agencies whose work requires them to engage in conduct which, but for the existence of specific statutory exemptions, would be unlawful.

Where legislation provides an exemption for otherwise unlawful conduct engaged in by individuals acting "in the course of their duties", these provisions are likely to be read strictly (see Coco v The Queen (1994) 179 CLR 427 at 435-436). Agencies should be careful to identify the scope of the duties protected by an exemption. If individuals carrying out those duties may also be called upon to act in other capacities – particularly if the request is made under a different piece of legislation – care must be taken to delineate the duties of one role from those of another. Following Binsaris, courts are likely to view statutory powers as attaching to a person's designated role under a particular piece of legislation, and not at large.

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