The Australian government could be forced to pay millions of dollars in compensation to more than 350 unlawful non-citizens held in indefinite detention, following a unanimous High Court ruling against the Commonwealth. The decision, handed down on Wednesday, rejected the government's defence in a damages claim brought by Austrian citizen Safwat Abdel-Hady, who was unlawfully detained for 18 months.
Human rights lawyers and refugee advocacy groups have hailed the ruling as a 'significant outcome'. The High Court found that the government could not rely on a common law defence that it was following precedent set in the 2004 Al-Kateb case, which had authorised indefinite detention. That precedent was overturned in November 2023 in the NZYQ case, leading to the release of hundreds of detainees.
Justice Michelle Gordon stated that allowing the defence would 'significantly undermine the ability of a person to obtain redress where the executive exceeds its authority'. Greg Barns SC of the Australian Lawyers Alliance estimated the compensation bill could 'run into the tens of millions of dollars', noting a previous $70 million settlement for Manus Island detainees.
The Asylum Seeker Resource Centre's Jana Favero described indefinite detention as 'harmful' and 'comes at the cost of people's health, their mental health, and their wellbeing'. Human rights lawyer Alison Battisson said the result was 'foreseeable' and that she already has clients awaiting compensation. The government is considering the judgment's implications.
