High Court rules against Australian government on non-citizen detention compensation

Millions of dollars in compensation could be paid out to more than 350 unlawful non-citizens held in indefinite detention after the high court ruled against the Australian government.

The ruling marks another blow for the Albanese government after its requirement that released members of the NZYQ cohort must wear ankle monitoring bracelets and abide by curfews was struck down as unconstitutional earlier this year.

Human rights lawyers and refugee advocacy groups have lauded the “foreseeable” decision as a “significant outcome”.

On Wednesday, the full bench of the high court ruled unanimously against the federal government’s attempt to mount a defence against a damages claim brought by an Austrian citizen, Safwat Abdel-Hady, paving the way for potentially hundreds more cases.

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.

Lawyers for the businessman had argued he should not have been detained by authorities 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 in circumstances where it is impossible to deport them.

The ruling 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 couldn’t be removed from Australia because they were refugees or stateless.

The commonwealth had attempted to defend against Abdel-Hady’s damages claims using a common law defence – that it was following the precedent set out by the high court in the 2004 Al-Kateb ruling.

All seven high court justices ruled against the commonwealth, with Justice Michelle Gordon saying it would “significantly undermine the ability of a person to obtain redress where the executive exceeds its authority”.

“That door should remain closed,” Gordon said.

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

Greg Barns SC, a spokesperson for the Australian Lawyers Alliance, said he estimated the bill for the case could “run into the tens of millions of dollars”.

“Previously, in 2017, the Commonwealth government agreed to pay $70m (plus costs) to settle a class action involving detainees on Manus Island. There have also, post the Tampa incident in 2001, been numerous claims brought by individual asylum seekers for mental and physical harm – with the Commonwealth having to pay compensation,” he said.

“This is another reason why mandatory detention must cease immediately.”

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”.

“This is a significant outcome, because it paves the way for people to finally access justice for the cruelty inflicted on them,” she said.

“Families have been separated, children have been robbed of their childhoods and there are thousands of people who are still living with the consequences of having years of their lives stolen from them.”

The human rights lawyer Alison Battisson welcomed the court’s 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.

The Albanese government last year signed a $2.5bn deal with Nauru to remove members of the NZYQ-affected cohort to the tiny Pacific island.

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, according to the home affairs department.