“The High Court’s decision means that an unlawful non-citizen who has no realistic prospect of being removed from Australia can sue for false imprisonment,”
SYDNEY:- A high court ruling allowing a man to sue for false imprisonment for being held indefinitely in immigration detention has raised concerns that it could lead to additional claims worth millions of dollars. Abdel-Hadi was held in immigration detention in 2017 after being charged with a criminal offense.
Abdel-Hadi argues that he was falsely imprisoned while being held in indefinite immigration detention, despite the government admitting that he could not be removed from Australia on health grounds from mid-2022. Abdel-Hadi, an Austrian citizen, suffers from a condition that puts him at high risk of thrombosis and prevents him from flying.
Tuesday’s case only applied to the date the government accepted he could not travel from, from July 2022 until the High Court’s ruling in November 2023, and that indefinite immigration detention is unlawful where there is no real prospect of removal from Australia that would reasonably be practicable in the future.
Abdel-Hadi’s case has been in federal court for some time, but the government took it to the high court. It wanted the court to find that the government should not be liable even if Abdel-Hadi was falsely imprisoned.
The high court found that the government’s argument that it and its officers had a defense against liability for false imprisonment under the common law failed on the level of constitutional principle. The majority decision stated that it would not recognize immunity that applies when officers and the government’s power exceeds the limits.
The court said that if it accepted the defence offered by the Commonwealth, it would give officers lasting protection for unlawful actions based on court decisions rather than on the law. The high court said, ‘That result would be tantamount to giving this court’s findings a power they do not have.’
Today’s ruling against the government opens the way for Mr Abdel-Hadi to seek compensation, but the amount has yet to be determined.
Greg Barnes, a representative for the Australian Legal Practitioners Association, said it could claim hundreds of millions of dollars from those released after the High Court ruled indefinite immigration detention unlawful.
“The High Court’s decision means that an unlawful non-citizen who has no realistic prospect of being removed from Australia can sue for false imprisonment,” Barnes said, adding that at least 340 former detainees were likely to be affected by the 2023 decision. Shadow Immigration Minister Jono Dunyam said it was a disaster for the government.
