The High Court’s latest ruling on false imprisonment exposes the legal, financial and human consequences of Australia’s punitive immigration detention system, and the political refusal to abandon cruelty as policy.
Australia’s mistreatment of immigration detainees, particularly asylum seekers and those who have had their visa cancelled, has been notorious for over two decades. It has been marked by, among many things, inhumanity and unlawful actions. And it has been hideously expensive. This week’s High Court ruling on false imprisonment of detainees is another reminder of the consequences of this hardline approach.
The High Court’s decision which found that the Commonwealth could not rely on a novel defence to a claim of false imprisonment has its genesis in the Court’s landmark 2023 decision called NZYQ. In that case the Court overturned a 2004 decision, and ruled that the Commonwealth cannot detain a person who does not have a visa where ‘there is no real prospect of removal of the [detainee] from Australia becoming practicable in the reasonably foreseeable future’.
This case impacted an estimated number of around 340 people. The consequence of the High Court’s decision was that these individuals had been unlawfully detained. In other words, the Commonwealth is liable for damages payments for every day an individual was falsely detained.
This week’s ruling in a case called Abdel-Hady v The Commonwealth said that the Commonwealth could not rely on a defence to any false imprisonment claim that, if a government official was carrying out their duties under a law that was previously found to be valid that means the claim fails. A bold argument and one that got short shrift from the High Court this week. It’s a bedrock rule of law principle that the state can only interfere with liberty when it can lawfully do so.
The bottom line now is there will be many false imprisonment claims and the Commonwealth will have to pay out tens of millions of dollars.
Not for the first time. While politicians and some media have, since the infamous Tampa incident in 2001 when John Howard refused to allow a ship with asylum seekers it had rescued enter Australian waters, dehumanised asylum seekers, refugees and those from certain countries such as Afghanistan, Iraq, Iran and other non Anglo/European counties their infliction of cruelty has cost the taxpayers.
In 2017 the Commonwealth paid out $70 million plus costs to 1905 asylum seekers and detainees who had suffered physical and mental injuries in the Manus Island detention centre.
In one year, 2016-2017 the Commonwealth paid out, according to FOI documents, a ‘total of $683,833.33 in six matters brought by asylum seekers or refugees who alleged personal injury or false imprisonment.’
In November 2011, documents from the federal Finance Department showed ‘a total 293 unlawful detention claims, and 111 negligence claims had been made by asylum seekers since 2000 with the biggest payout years being 2006 ($7.6 million) and 2007 ($4.9 million)’, the Sydney Morning Herald reported.
And we know that in the current federal Budget Papers there is a contingency made for immigration system compensation payments of between $20 million and $50 million.
And despite this both the Labor government and the Coalition continue to support a system marked by an obsession with detention, irrespective of the human cost.
You can bet that there will be compensation claims from those who were released from detention after the NZYQ decision and who are now on Nauru courtesy of a deal by the Home Affairs Minister Tony Bourke in August last year with the notoriously dysfunctional and corrupt government on that benighted Pacific island.
But back to this week’s decision. You are entitled to ask the question as to why the federal government did not simply decide after losing the NZYQ case and cases subsequent to that where the High Court knocked off attempts to punish the former detainees in the community, to pay out compensation? Yes, the Commonwealth has every right to test the law but was this the case to do so?
And will this decision signal to politicians in this country that they must stop pushing legal boundaries because they want to be seen as ‘tough’ on those who the right wing media and racist politicians treat as menaces to be got rid of as quickly as possible?
Sadly no. After NZYQ, instead of supporting those who were released into the community the Albanese government imposed curfews, ankle bracelets and reporting conditions. The Coalition was even worse. Along with its media friends it cast this group of former detainees as a plague.
You can sheet home the blame for the extraordinarily punitive approach to immigration detainees taken by Australia to Mr Howard. He was the architect of the nastiness and the cruelty. And because he hit on a winning political formula all since have followed suit.
Let’s see what happens next but sadly it’s predictable. There will be headlines and posturing by overtly or covertly racist politicians about undeserving criminals who don’t belong here, getting taxpayer-funded payouts. Never mind they were deprived of their liberty unlawfully.
Greg Barns SC is a former National President of the Australian Lawyers Alliance