That door should remain closed to government defenses
In a unanimous ruling, Australia's High Court has determined that the state cannot shield itself from accountability by pointing to its own flawed precedents — a principle as old as justice itself. More than 350 non-citizens, held indefinitely in immigration detention despite no realistic prospect of deportation, are now entitled to seek compensation for what the court has confirmed was unlawful confinement. The decision dismantles a legal architecture built on the 2004 Al-Kateb ruling and places the human cost of that architecture squarely before the government that defended it.
- Seven justices spoke with one voice: a government cannot escape liability for unlawful detention simply by claiming it was following its own rules.
- The financial exposure is substantial — advocates estimate tens of millions of dollars, with the 2017 Manus Island settlement of $70 million offering a sobering point of comparison.
- Over 350 people who were released after the Al-Kateb precedent fell in 2023 now have a legal pathway to pursue damages for years of confinement, family separation, and lasting psychological harm.
- The Albanese government, already stung by the unconstitutional ankle bracelet regime, has offered only that it is 'carefully considering' the ruling — while continuing to detain dozens more pending removal to Nauru.
- Advocates are pressing for the immediate end of mandatory detention, warning that every day the system continues adds to a liability the Australian taxpayer will ultimately bear.
Australia's High Court has unanimously ruled that the federal government cannot defend itself against damages claims by arguing it was simply following established law — even when that law has since been found unconstitutional. The case was brought by Safwat Abdel-Hady, an Austrian businessman detained for eighteen months despite authorities having no real prospect of deporting him due to his health conditions. All seven justices rejected the government's reliance on the 2004 Al-Kateb precedent, which had long permitted the indefinite detention of non-citizens without valid visas even when removal was impossible.
Justice Michelle Gordon wrote that allowing such a defense would fundamentally undermine a person's ability to seek redress when the executive exceeds its authority. The ruling follows the November 2023 overturning of Al-Kateb itself — a landmark decision that freed hundreds of stateless and refugee detainees — and now opens a compensation pathway for more than 350 of those individuals.
Senior counsel Greg Barns estimated the bill could run into the tens of millions, pointing to the $70 million Manus Island class action settlement as a precedent. Human rights advocates welcomed the decision as long overdue. Jana Favero of the Asylum Seeker Resource Centre described it as a chance for people to access justice for serious cruelty, noting that families were separated and children lost years of their childhoods. Lawyer Alison Battisson said she already has clients ready to file claims, and warned the government must now reckon with its role in sustaining a system that will cost Australians dearly.
The government has said only that it is carefully considering the judgment. It continues to operate a $2.5 billion arrangement with Nauru, where twelve men have already been sent, while more than thirty others remain in detention awaiting removal.
Australia's High Court has unanimously rejected the federal government's legal defense in a damages claim brought by an Austrian businessman held in immigration detention for eighteen months despite having no realistic chance of being deported. The decision, handed down on Wednesday, opens the door to compensation claims from more than 350 non-citizens who were unlawfully detained under a now-overturned legal framework, potentially costing the commonwealth tens of millions of dollars.
Safwat Abdel-Hady, a businessman, was held in immigration detention between July 2022 and February 2024. The federal circuit court later found that authorities had no real prospect of removing him due to his health conditions, making his detention unlawful. His lawyers challenged the government's reliance on a 2004 High Court precedent known as Al-Kateb, which had authorized indefinite detention of non-citizens without valid visas even when deportation was impossible. The government attempted to defend itself by arguing it was simply following established law. All seven justices rejected this argument.
Justice Michelle Gordon wrote that accepting such a defense would "significantly undermine the ability of a person to obtain redress where the executive exceeds its authority." She added: "That door should remain closed." The ruling represents another legal setback for the Albanese government, which earlier this year saw its requirement that released detainees wear ankle monitoring bracelets and observe curfews struck down as unconstitutional.
The Al-Kateb precedent itself was overturned in November 2023 in a landmark case brought by a stateless Rohingya man known as NZYQ. That decision triggered the release of hundreds of non-citizens who could not be removed from Australia because they were refugees or stateless. The current ruling now creates a pathway for those individuals to seek damages for their unlawful detention.
Greg Barns, a senior counsel and spokesperson for the Australian Lawyers Alliance, estimated the compensation bill could "run into the tens of millions of dollars." He pointed to historical precedent: in 2017, the government settled a class action involving detainees on Manus Island for $70 million plus costs. Individual asylum seekers have also brought successful claims for mental and physical harm following the 2001 Tampa incident. "This is another reason why mandatory detention must cease immediately," Barns said.
Advocates have long argued that indefinite detention causes severe harm. Jana Favero, deputy chief executive of the Asylum Seeker Resource Centre, described the ruling as a significant outcome that allows people to "finally access justice for the cruelty inflicted on them." She noted that families have been separated, children have lost years of their childhoods, and thousands continue living with the consequences of prolonged detention. Human rights lawyer Alison Battisson said she already has clients waiting to pursue claims, and warned that 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."
The government has not yet indicated how it will respond to the ruling. A spokesperson said only that the commonwealth was "carefully considering the judgment and its implications." Meanwhile, the Albanese government continues with its $2.5 billion arrangement with Nauru to remove members of the affected cohort to the Pacific island nation. Twelve men have been sent there with thirty-year visas, while more than thirty others remain in immigration detention pending removal.
Notable Quotes
That door should remain closed— Justice Michelle Gordon, on whether the government can defend unlawful detention by claiming it followed precedent
This is another reason why mandatory detention must cease immediately— Greg Barns, Australian Lawyers Alliance
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— Jana Favero, Asylum Seeker Resource Centre
The Hearth Conversation Another angle on the story
Why does this ruling matter now, when the Al-Kateb precedent was already overturned last year?
Because overturning a precedent and proving the government acted unlawfully are two different things. Until this decision, the government could argue it was following the law as it existed at the time. Now the court has said that defense doesn't work—the government is liable for damages.
So the government knew the detention might be unlawful but did it anyway?
Not necessarily. They believed they had legal authority under Al-Kateb. But the court is saying that even if you're following a precedent, you can still be held liable if that precedent is later found to be wrong and caused harm.
What does "no real prospect" of removal mean in Abdel-Hady's case?
His health conditions made it medically impossible or impractical to deport him. So he was being held indefinitely in a system designed to detain people temporarily while they awaited removal. He couldn't leave, but he also couldn't be removed.
How many people are we talking about here?
More than 350 non-citizens were held under this framework. Not all of them will necessarily claim damages, but the ruling opens the door for them to do so.
What's the government's next move?
They haven't said yet. They're "carefully considering" the judgment. But they're also continuing to send people to Nauru under a separate arrangement, which suggests they're not abandoning detention as a policy tool.
Is there a pattern here of the courts overruling detention policy?
Yes. The NZYQ case overturned Al-Kateb. The ankle monitoring requirement was struck down as unconstitutional. Now this. The courts keep finding that the government's detention framework exceeds its legal authority.