High Court ruling opens door to compensation for unlawful detention

Australia’s High Court has ruled against the federal government in a case that could open the way for hundreds of people held in indefinite immigration detention to claim compensation, according to multiple reports. The unanimous decision, handed down on Wednesday, strikes down a common law defence the government had used to avoid paying damages for false imprisonment.

The case was brought by Safwat Abdel-Hady, an Austrian citizen who was placed in immigration detention in 2017 after a criminal conviction. Abdel-Hady argued he was falsely imprisoned when he was kept in detention after the government admitted that, from mid-2022, he could not be removed from Australia for health reasons. The federal circuit court found in June 2024 that Abdel-Hady was unlawfully detained for 18 months, from 28 July 2022 to 13 February 2024, because there was “no real prospect” of his removal.

The government had attempted to defend against Abdel-Hady’s damages claim using a common law defence, arguing it was following the precedent set by the High Court in the 2004 Al-Kateb ruling, which had authorised indefinite detention of non-citizens even when deportation was impossible. However, that precedent was overturned in a landmark decision in November 2023, in a case brought by a stateless Rohingya man known as NZYQ. That ruling declared indefinite detention unlawful where there is no real prospect of removal, triggering the release of hundreds of non-citizens who could not be deported because they were refugees or stateless.

The High Court’s latest decision rejected the government’s defence, with all seven justices ruling against the Commonwealth. In the majority judgment, Justice Michelle Gordon said that accepting the government’s argument would “significantly undermine the ability of a person to obtain redress where the executive exceeds the limits of its power.” The court added that to accept the defence would provide “unsustainable protection to officers for unlawful acts” and would “purport to confer on the court’s reasons or conclusions an authority” they do not possess.

Human rights lawyers and refugee advocacy groups have welcomed the ruling, describing it as a “significant outcome.” They argue that the decision affirms the principle that individuals who have been unlawfully detained are entitled to seek compensation, even when the government was acting under a previous legal interpretation.

The financial implications could be substantial. Reports suggest that compensation claims from the so-called NZYQ cohort—the more than 350 people released after the November 2023 ruling—could reach tens of millions of dollars. However, the precise number of claims and the total payout remain uncertain, as each case would need to be assessed individually.

The ruling is another legal setback for the Albanese government, which has faced criticism over its handling of immigration detention and its attempts to impose strict conditions on released detainees. Earlier this year, the High Court also struck down a government requirement that released members of the NZYQ cohort wear ankle monitoring bracelets and abide by curfews, ruling those conditions unconstitutional.

While the full implications of the ruling are still unfolding, legal experts say the decision clarifies that the government cannot use legal precedent as a shield against liability for unlawful detention. The case will now return to the lower courts to determine damages for Abdel-Hady, with other detainees likely to follow suit.

As the legal landscape shifts, the government has not yet announced whether it will seek to legislate changes to limit compensation claims. In the meantime, the ruling stands as a reaffirmation of the constitutional limits on executive power and the right of individuals to seek redress for unlawful imprisonment.

Key Claims

  • The High Court ruled unanimously against the federal government in the case of Safwat Abdel-Hady, allowing claims for false imprisonment damages to proceed.
  • Abdel-Hady was held in immigration detention for 18 months between July 2022 and February 2024, after which a court found his detention was unlawful.
  • The government’s defence, based on the 2004 Al-Kateb precedent, was rejected, with the court stating that accepting it would undermine the ability to obtain redress.
  • Hundreds of non-citizens released after the November 2023 NZYQ ruling could potentially file compensation claims, with reports suggesting claims could reach tens of millions of dollars.
  • Human rights lawyers and refugee advocacy groups have praised the decision as a significant outcome.