Taxpayers could be on the hook for tens of millions of dollars in compensation after the High Court ruled against the Albanese government over its liability for the false imprisonment of a non-citizen held in indefinite immigration detention.
The full bench of the High Court in Canberra on Wednesday ruled in favour of Safwat Abdel-Hady, an Austrian citizen who first arrived in Australia in 1997. Mr Abdel-Hady had his visa cancelled in March 2017 by then-Immigration Minister Peter Dutton.
In a written judgement, the court stated Mr Abdel-Hady suffered from an aggressive form of thrombophilia, which rendered him unfit to travel by plane. The commonwealth government was left with no reasonable prospect of removing him from Australia. They admitted Mr Abdel-Hady was illegally detained from July 2022 until February 2024.
While noting the findings of the NZYQ case, which ruled detention of any person with no real prospect of being deported to another country in the reasonably foreseeable future was illegal, the government argued it should be immune from civil damages over the man's detention. Lawyers for the commonwealth argued the detaining officer had performed his duty under the Migration Act in accordance with legal precedent prior to the NZYQ ruling, and that they were subject to all applicable Australian laws.
However, in his ruling, High Court Justice James Edelman warned such a finding would establish differing treatment under law of the commonwealth and its officers, such as those involved in immigration detention, and all other persons. The former would be immune from liability for false imprisonment if acting upon a mistaken understanding of the law, but the latter would not. That different treatment would be inconsistent with the Diceyan principle of legal equality of all persons under the law. All persons are required to comply with the law in its proper application to their conduct as well as with orders and commands of the courts. Absent statutory authority to do so, there is no basis in these circumstances to treat the commonwealth or officers of the executive any differently from other people.
Mr Abdel-Hady had claimed his imprisonment from 2022 to 2024 was not authorised under the Migration Act, and sought damages for false imprisonment against the commonwealth for the entirety of that period. The judgement states the plaintiff puts the claim primarily on the basis that the detaining officer is liable in false imprisonment and that the commonwealth as employer is vicariously liable for any liability of the detaining officer. Justice Edelman found the commonwealth was both directly and vicariously liable.
The finding is the latest blow to the government and its immigration regime following the NZYQ decision. Opposition home affairs spokesperson Jonno Duniam claimed Labor was warned but had been slow to act. He said this is another NZYQ disaster for the Albanese Government, meaning taxpayers may now be exposed to tens of millions of dollars in further liabilities because this government failed to properly manage the legal and practical consequences of NZYQ. Since the original NZYQ decision, Australians have been forced to watch dangerous non-citizens released into their communities, repeated legal setbacks, and a government constantly caught flat footed. The Albanese government should be responsibly protecting the community, sensibly managing the immigration system, and ensuring the Commonwealth acts lawfully.
Previously, the Albanese government had affirmed it was not responsible for the NZYQ decision and had introduced measures in response, including ankle monitoring which was itself deemed unconstitutional by the High Court in March. The government also struck a multi-billion dollar deal with the Pacific nation of Nauru to rehome a number of the cohort, though the program has been plagued by controversy.
On Wednesday's ruling, a spokesperson for the government said it was carefully considering the judgment and its implications. However, the decision was welcomed by the Asylum Seeker Resource Centre as a critical step towards justice. Deputy CEO Jana Favero said this is a significant outcome because it paves the way for people to finally access justice for the cruelty inflicted on them. We have always said that indefinite detention is harmful and comes at the cost of people's health, their mental health, and their wellbeing. Families have been separated and people are still living with the consequences of having years of their lives stolen from them. The lesson from this case is clear - this harm should never have been inflicted, and the government must ensure it never happens again.
