High Court rejects Commonwealth damages defenceHundreds could seek compensation after NZYQ rulingSee more Daily Mail on Google – save us as a Preferred Source
The Albanese government could be forced to pay millions of dollars in compensation to foreign-born criminals who were held in indefinite immigration detention after a landmark High Court ruling.
On Wednesday, the entire bench rejected the Commonwealth’s argument it should be protected from damages claims over detention found to be unlawful.
It described the Commonwealth’s case as a ‘perversion’ of constitutional principles.
The ruling is likely to pave the way for hundreds of compensation claims from former detainees released following the landmark NZYQ decision in 2023.
The NZYQ decision by the High Court found Australia could not indefinitely detain non-citizens with no realistic prospect of being deported, leading to the release of hundreds of immigration detainees.
A spokesperson for the Department of Home Affairs told the Daily Mail they would look at the judgement.
‘The Department is carefully considering the judgment and its implications, which concerns complex legal issues,’ they said.
‘It would be inappropriate to comment further while the matter remains before the Court.’
The government could face huge compensation payouts to foreign-born criminals who were held in indefinite immigration detention (Pictured: Minister for Home Affairs Tony Burke)
The entire bench of the High Court rejected the Commonwealth’s contention it should be protected from damages claims over detention found to be unlawful
The High Court ruling came after a case was brought by Austrian citizen Safwat Abdel-Hady, who was detained in Australia in 2017.
Mr Abdel-Hady, who first visited Australia in 1997, held various visas until one was cancelled in March 2017. He was taken into custody in August that year.
Mr Abdel-Hady was diagnosed with thrombophilia in 2022, an extreme tendency to the formation of blood clots within arterial or venous blood vessels.
It meant he was deemed unable to travel by plane and could not be removed from Australia, the decision said.
According to the High Court, the Commonwealth accepted Mr Abdel-Hady’s detention from July 28, 2022 to February 13, 2024 was not authorised under the Migration Act.
But the government told the High Court it should not be liable for civil damages.
However, the full bench of the High Court ruled in Mr Abdel-Hady’s favour.
High Court Justice James Edelman noted in his decision that offering the Commonwealth immunity would mean different treatment to all others.
‘The former [Commonwealth] would be immune from liability for false imprisonment if acting upon a mistaken understanding of the law but the latter would not,’ he wrote.
An asylum seeker released under the original NZYQ decision
High Court Justice James Edelman (pictured) said a scenario in which the government were immune from having to pay compensation would mean others were treated differently
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‘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.’
Following the High Court decision, Shadow Home Affairs and Immigration Minister Senator Jonno Duniam issued a harsh critique of the Commonwealth.
‘This is another NZYQ disaster for the Albanese Government,’ he said in a statement.
‘The High Court has today made clear that the Commonwealth does not have the defence it sought in this case.
‘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.
‘A strong government would have acted early, acted decisively and put community safety first. This Government has done the opposite.’
