Lewis v Australian Capital Territory: Valuing Freedom

It has long been a principle of the common law that where basic rights in person, liberty and property are infringed, such violations will be met with an award of substantial damages. This approach to damages has served to strongly protect and vindicate the importance of these basic rights, especially in the face of unlawful action by government. However, this longstanding tradition is now in jeopardy. Lower courts in Australia have begun to deny awards for significant breaches of the right to liberty on the basis that, albeit the public defendant unlawfully detained the plaintiff, the defendant could and would have otherwise detained the plaintiff lawfully. In Lewis v Australian Capital Territory, the High Court of Australia must decide authoritatively whether to endorse this deviation from orthodoxy. This column argues that the Court should reject this novel approach and maintain the orthodoxy that substantial damages follow infringements of basic rights.