There are warnings a High Court ruling allowing a man to sue for false imprisonment over his indefinite immigration detention will lead to more claims running into the tens of millions of dollars.
Safwat Abdel-Hady was placed in immigration detention in 2017 after a criminal conviction.
He argues he was falsely imprisoned when he was kept in indefinite immigration detention, even after the government admitted that from mid-2022 he could not be removed from Australia for health reasons.
Mr Abdel-Hady, who is Austrian, suffers a condition which carries a high risk of thrombosis and prevents him from flying.
Today’s case only applied to the date from which the government conceded he could not travel, from July 2022 until the High Court ruling in November 2023, and that indefinite immigration detention is illegal where there is no real prospect of removal from Australia becoming practicable in the reasonably foreseeable future.
Those who were released after the ruling have become known as the NZYQ cohort.
Mr Abdel-Hady’s case has been in the Federal Court for some time, but was taken to the High Court by the government.
It wanted the court to find that even if Mr Abdel-Hady had been falsely imprisoned the government should not be liable.
The High Court found the government’s case, that it and its officers had a defence against liability for false imprisonment under the common law, failed at the level of constitutional principle.
The majority decision said it did not accept that immunity applied in circumstances where the limits of the power of the officers and the government were exceeded.
“To do so would amount to an inversion, if not a perversion, of constitutional principle,”
the High Court said.
The court said if it accepted the defence proposed by the Commonwealth it would provide an unsustainable protection to the officers for unlawful acts based on the court’s ruling rather than the law.
“That result would purport to confer on this court’s reasons or conclusions an authority they do not possess,” the High Court said.
Compensation to come
While today’s ruling against the government has cleared the way for Mr Abdel-Hady to seek compensation, just how much money is involved is yet to be determined.
Mr Barns says there were likely hundreds of former detainees in the same position. (ABC News)
Greg Barns from the Australian Lawyers Alliance said it could lead to claims running into the tens of millions of dollars from those who were released after the High Court ruling that indefinite immigration detention was illegal.
“The High Court decision means that an unlawful non-citizen whose removal from Australia has no real prospect of becoming practicable in the reasonably foreseeable future can sue for false imprisonment.” Mr Barns said.
Mr Barns said there were likely to be at least 340 former detainees affected by the 2023 decision.
Shadow Minister for Immigration Jonno Duniam said it was a disaster for the government.
“The High Court has today made clear that the Commonwealth does not have the defence it sought in this case,”
Mr Duniam said.
“That means 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.”
The government said it had noted the decision of the High Court and was carefully considering the judgment and its implications.
