High Court decision has potential for undefendable claims for damages against the Commonwealth for unlawful imprisonment on Indefinite Immigration Detention.

The High Court has, in an ex-tempore judgment (with written reasons to follow), overturned the 20-year-old case of Al-Kateb v Godwin.

In Al-Kateb, a majority of the High Court found that a person in immigration detention, who was unable to be returned to their home country or another country, could be held indefinitely by the government if it was for the purposes of processing and removal. The court's reasoning was that immigration detention was not punitive detention but administrative detention. As such, it did not infringe upon Chapter III of the constitution, which allows only courts to impose punitive detention. Consequently, the government could hold a person for an indefinite period as long as it was for the purpose of processing and removal.

NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs & Anor

However, the recent decision of the High Court overturned this. In NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs & Anor ('NZYQ'). In NZYQ, the plaintiff had a conviction of sexual intercourse with a minor and was in danger of deportation. However, an issue arose as no country wanted to accept him. He became effectively a stateless person. This meant that under the previous ruling of Al-Kateb, he could be in immigration detention indefinitely.

The plaintiff brought a writ of habeas corpus, and the High Court found that Al-Kateb was arrived at a wrong decision and that immigration detention was a form of punitive detention. As such, it offended Chapter III of the Constitution, which vests in courts the power to impose punitive punishments and not the legislature or executive.

What does this mean?

This means that any person who was or is held in indefinite detention was likely unlawfully imprisoned for the period of that detention, as the Solicitor General submitted to the High Court:

'... the consequence is damages for any person who falls into the category we would have released had Al-Kateb been decided differently ... so the consequence will be undefendable damages claims' [where people have been indefinitely detained.]

The Department of Home Affairs estimates that a minimum of 92 people will now have claims for compensation. But there could possibly be hundreds more.

As such, there are potentially hundreds of people who have been in unlawfully in immigration detention who now have a claim against the Commonwealth Government.