Home Affairs could pay out tens of millions to former detainees, criminals, after High Court ruling

Foreigners who have been unlawfully held in immigration detention could claim tens of millions of dollars in compensation after the High Court rejected the government’s argument that it should not be held liable for illegal detentions.

The ruling is the latest blow to the government in the years-long political and legal fallout from the court’s landmark 2023 ruling, which found locking people in immigration detention indefinitely was illegal.

The court on Wednesday ruled in the case of Safwat Abdel-Hady, an Austrian citizen who is seeking compensation for false imprisonment after he was detained unlawfully from July 2022 until February 2024. His visa was cancelled in 2017 on character grounds.

The High Court’s 2023 decision forced the release of more than 340 convicted criminals, including rapists, murderers and paedophiles, who had served their jail time but could not return to their country of origin because they were stateless or feared persecution if they returned.

The saga forced a ministerial reshuffle, with Clare O’Neil moved from home affairs and Andrew Giles from immigration after a spate of headlines about former detainees reoffending, while laws rushed through parliament to monitor those released by the court were also struck down as illegal. Preventative detention laws were introduced but never used.

The Commonwealth has admitted Abdel-Hady’s detention was unlawful because there was no real prospect of his removal from Australia due to a medical condition that rendered him unfit to travel on commercial flights.

However, it argued the High Court should recognise a novel defence that would allow the detaining officer, and by extension the Commonwealth, to escape liability for false imprisonment.

It said the officer was relying on a previous High Court decision that it was lawful to keep non-citizens locked up indefinitely if they could not be deported. That decision was overturned in November 2023 in the case known as NZYQ.

The High Court rejected that argument on Wednesday.

David Manne, the chief executive and principal solicitor at Refugee Legal, a leading representative for many of the NZYQ cohort, said the broader implications of the ruling were “potentially very significant”.

“The High Court has emphatically ruled that where there is a false imprisonment claim for indefinite detention, that the government won’t be able to defend that claim on the basis that they thought the law was different,” he said.

Manne said indefinite detention involved serious deprivations of fundamental rights, including the right to liberty, and had caused significant harm.

“This may well provide to people in the situation an ability to seek redress and to seek justice,” he said.

The ruling does not mean that all individuals in the group are entitled to compensation, but removes a significant defence for the government in cases brought against it.

A government spokesperson said: “The Commonwealth notes the decision of the High Court and is carefully considering the judgment and its implications.”

Australian Lawyers Alliance spokesperson Greg Barns pointed to the mounting cost of mandatory detention as a reason for it to be scrapped.

“This latest decision will see claims for compensations which will run into the tens of millions of dollars,” he said in a statement.

“Previously, in 2017, the Commonwealth government agreed to pay $70 million (plus costs) to settle a class action involving detainees on Manus Island,” adding that numerous asylum seekers had also been paid out for mental and physical harm following the 2001 Tampa incident.