The Tort of Misuse of Public Office: Suggested Clarifications and Reforms

Recently the Federal Court of Australia found that a Commonwealth Minister had committed the tort of misuse of public office. While this claim is often brought, it is usually unsuccessful, making this case noteworthy. The case shines a spotlight on this unusual tort. While it has a lengthy history in the common law, many of its contours remain unresolved. This article will explain the basis of the tort, before considering how it has developed in the United Kingdom and Australia. It will consider differences, or possible differences, between the tort in the two jurisdictions. It then critically considers some important aspects of the tort about which there continues to be controversy, including the notion of a public office, the question of vicarious liability, the question whether a duty of care is necessary, and the mental element required. It suggests some important changes in how courts should apply these principles in future cases, to better reflect the realities of government today, the rationale of the tort, and to make it consistent with the courts’ approach to other intent-based torts with which the High Court has specifically related to this novel tort.