Immigrant criminals allowed to sue government for ‘unlawful detention’

For nearly 20 years, the Commonwealth operated under the mistaken assumption that it was allowed to hold people in immigration detention indefinitely. In 2023, the High Court’s landmark ruling confirmed otherwise.

We are now about to see the fallout of those events, with the government facing potential civil liability to people who, as it turns out, were unlawfully detained.

A new High Court judgment in a case called Abdel-Hady vs the Commonwealth has left the door open for a man who was unlawfully detained to sue the government for compensation, potentially allowing hundreds of others to do the same.

How did we get here?

The legal history traces back to a 2004 High Court case. That case found that the Migration Act allows the government to detain unlawful non-citizens until they were deported, even if there was no realistic prospect of deportation (for example, if no other country would accept them).

For a person who had nowhere else to go, this effectively led to indefinite detention.

In a 2023 decision, often dubbed the NZYQ case, the High Court reopened and overruled that earlier case on constitutional grounds. The upshot was that the government had, for some time, been relying on an invalid law to detain a person where there was no foreseeable prospect of deporting them.

Without legal authority to detain, the Commonwealth faces potential liability for false imprisonment. This tort (a civil wrong) provides compensation if a person, including a government official, detains someone without lawful authority.

It is relatively clear that people held in immigration detention have been “detained” in the legal sense. Since the NZYQ case, it also seems relatively clear that this detention was unlawful if there was no realistic prospect of deportation.

What did the court find?

This is where the new decision becomes relevant.

Safwat Abdel-Hady came to Australia from Austria in 1997. He lived here on a visa until it was cancelled on character grounds in 2017, leading to his detention. He commenced proceedings in 2021 challenging the legality of his detention and seeking compensation.

Abdel-Hady has a health condition that makes it dangerous for him to fly. The Commonwealth eventually came to accept that, from at least July 2022, there was no foreseeable prospect of deporting him. He was released in 2024 after the Commonwealth consented to court orders which ruled his detention for that period had been unlawful.

This left just the civil part of Abdel-Hady’s claim unresolved. With no real dispute about whether he had been unlawfully detained, the Commonwealth asked the High Court to recognise a new type of defence that would protect the government from liability.

In essence, the government argued that if an official is carrying out their duties under a law that’s previously been found to be valid, that would be a legal defence, even if the High Court later reverses its position.

All members of the High Court gave short shrift to that argument. One of the difficulties, the court said, was that the scope of the defence was ill-conceived.

More importantly, the defence did not sit comfortably with constitutional principle. The court reiterated that it’s a fundamental principle of our legal system that the government only interferes with liberty where it has legal authority to do so.

To recognise this new defence would have essentially transformed the government’s obligation to obey the law into an immunity where the government believes (even for good reason) it is acting within its power. Three judges said this “would amount to an inversion, if not a perversion, of constitutional principle”.

Potentially hundreds of claims

In rejecting the government’s defence, the judgment opens the door for Abdel-Hady and other people in a similar position to proceed with liability claims against the government.

Reports suggest around 350 people were released in the wake of the NZYQ finding. It is unclear how many of these people were actually detained unlawfully, or how many additional people might now be able to bring a claim.

Assuming any of these people are found to have been falsely imprisoned, the scope of potential liability will depend on each person’s circumstances, including the length of their detention and its impacts on them.

Previous false imprisonment claims against government have ranged from very significant awards in the order of hundreds of thousands of dollars all the way down to nominal damages of $1 in situations where detention was inevitable.

It is also possible that the Commonwealth will seek to settle claims rather than litigate, as it has done in previous false imprisonment matters in immigration detention.

Where to from here?

The implications of the High Court overruling its previous judgment in this situation are clearly significant for the government. The High Court only rarely overturns its previous judgments, and there are very important constitutional reasons why the High Court needs the ability to do so.

For the government, the matter may be an expensive lesson on the risks inherent in passing legislation that gives wide-ranging detention powers to the executive. Later regulatory workarounds have also been challenged and struck down.

As the High Court observed in this case, it was (and remains) open to government to manage or ameliorate some of those risks through carefully crafted legislation.

The case highlights the difficult position that government officials face when seeking to enforce a law that they believe to be valid, but later turns out not to be. But as Justice Michelle Gordon observed, to excuse the government from liability in this case on grounds of unfairness would simply shift the burden from the government to the unlawfully imprisoned person.

Ellen Rock, Associate Professor of Law, Faculty of Law and Justice, UNSW Sydney

This article is republished from The Conversation under a Creative Commons license. Read the original article.

Header image: Released NZYQ cohort detainee Lominja Friday Yokoju, who allegedly murdered a man in Melbourne after being released (Facebook).