The full bench of the High Court has ruled against the federal government after it unlawfully held Austrian citizen Safwat Abdel-Hady in detention. The decision paves the way for multimillion-dollar compensation claims from more than 350 unlawful non-citizens held in indefinite detention, marking another blow for the Albanese government.
Background of the Case
Abdel-Hady was unlawfully held in immigration detention for an 18-month period between 28 July 2022 and 13 February 2024 because there was "no real prospect" of his removal due to his health conditions, the Federal Circuit Court found in June 2024. His lawyers argued he should not have been detained using the precedent established in the 2004 High Court case of Al-Kateb, which authorised indefinite detention of non-citizens without a valid visa even when deportation is impossible.
Landmark NZYQ Ruling
The Al-Kateb precedent was overturned in a landmark decision in November 2023, brought by a stateless Rohingya man known as NZYQ, triggering the release of hundreds of non-citizens who could not be removed from Australia because they were refugees or stateless. The Commonwealth had attempted to defend against Abdel-Hady's damages claim using a common law defence that it was following the precedent set by the High Court in Al-Kateb.
High Court's Unanimous Decision
All seven High Court justices ruled against the Commonwealth, with Justice Michelle Gordon stating that allowing the defence would "significantly undermine the ability of a person to obtain redress where the executive exceeds its authority." She added, "That door should remain closed." A government spokesperson said the Commonwealth notes the decision and is carefully considering its implications.
Potential Compensation Costs
Greg Barns SC, a spokesperson for the Australian Lawyers Alliance, estimated the compensation bill could "run into the tens of millions of dollars." He noted that in 2017, the Commonwealth agreed to pay $70 million (plus costs) to settle a class action involving detainees on Manus Island, and numerous claims have been brought by individual asylum seekers for mental and physical harm. "This is another reason why mandatory detention must cease immediately," he said.
Reactions from Advocacy Groups
The Asylum Seeker Resource Centre's deputy chief executive, Jana Favero, said advocates had always insisted indefinite detention was "harmful" and "comes at the cost of people's health, their mental health, and their wellbeing." She described the ruling as "a significant outcome, because it paves the way for people to finally access justice for the cruelty inflicted on them." Human rights lawyer Alison Battisson welcomed the judgment, saying she already had clients waiting in the wings. "The government must now face up to the fact that they have participated in a system, and fought to keep it going, that will now cost the Australian taxpayer millions in compensation. This result was foreseeable," she said.
Government's Nauru Deal
The Albanese government last year signed a $2.5 billion deal with Nauru to remove members of the NZYQ-affected cohort to the tiny Pacific island. According to the Home Affairs Department, twelve men have been sent to the island with 30-year visas, while more than 30 others have been returned to immigration detention pending their removal to Nauru.
