Illegal detention. High Court tells Government to obey the law

The Supreme Court’s ruling on the wrongful imprisonment of refugees is a major win for human rights and a condemnation of the government. Alison Battisson And Janet Pelly report.

Last week the Supreme Court ruled (Abdel-Hady v Commonwealth of Australia) If a person continues to be detained after deportation can no longer reasonably be implemented, this will amount to false imprisonment. This is the most significant human rights and immigration decision since the introduction of indefinite detention. It was unanimously decided that it was unlawful In 2023.

But in the meantime media coverage Focusing on the size of the reparations bill, there are more fundamental questions: What logic drives the decision to unlawfully deny freedom? What harms follow? What is the extent of these damages? So what will change?

Government immunity denied

One of the most challenging aspects of the Abdel-Hady case was the Commonwealth’s defense of its officers’ actions.

In 2023, after it was realized that indefinite detention was unlawful, the practice continued. In Abdel-Hady, the Commonwealth argued that it should not face consequences for defying the Supreme Court’s unlawful detention decision (NZYQ) because he relied on his own understanding of the law.

A full bench of the Supreme Court unanimously rejected this argument, reaffirming a principle that predates federation:

freedom is protected not by the good will of government officials but by the legality of arrest itself.

Judge Edelman put it most clearly, saying that this meant that government officials had immunity that ordinary citizens did not: “The former will be immune from false imprisonment if he acts under a misunderstanding of the law, but the latter will not.”

Stating that such a result would be contrary to the principle of legal equality, he said, “Everyone must comply with the law in its appropriate application to their behavior…”

In fact, the Government will not be granted any special exemption from the laws of the land.

Refugees from Nauru. Indefinite detention is a clear violation of the Supreme Court decision

Government accountability

The legal fiction underlying indefinite detention for decades was that deportation always remained an achievable goal.

Following the illegal detention order, it was revealed that hundreds of people had remained in detention for years (and were likely to remain indefinitely) despite there being no realistic prospect of them being removed from Australia in the foreseeable future.

The vast majority could not be sent back because they were recognized as refugees, while others faced practical obstacles to deportation, such as rejection by the receiving country or becoming stateless.

They were released and, despite evidence to the contrary, political commentary claimed that the entire group were dangerous criminals and that any current action was justified to keep Australians safe.

Inhuman and degrading treatment

Although the Safwat Abdel-Hady case is often discussed in conjunction with the NZYQ group, his case shows that the consequences of the Supreme Court’s 2023 decision extend beyond the men who were released in the immediate aftermath of that decision.

The principle established in NZYQ applies wherever detention continues despite the possibility of deportation in the reasonably foreseeable future.

In Abdel-Hady’s case, the obstacle was not statelessness or diplomatic impasse, but serious illness that prevented him from traveling by air. The result was the same: The detention continued even after the legal justification was eliminated.

Another example can be found in the March 2026 findings of the United Nations Human Rights Committee on former immigration detainee Mirand Pjetri.

The Committee concluded for the first time that Australia subjected immigration detainee Mr Pjetri to inhuman or degrading treatment and arbitrarily deprived him of his liberty. It concluded that compensation was deserved and necessary.

Mr Pjetri spent eight years in administrative detention under Australia’s immigration laws.

He had broken no laws and was consistently considered low risk.

Despite this, he remained in prison while his mental and physical health deteriorated until he was assessed to be at imminent risk of death. Weighing 45kg, he was deported against medical advice and diagnosed with a serious autoimmune disease.

Governments often describe such cases as exceptional. Evidence accumulated over decades suggests otherwise. Psychiatrists, medical practitioners, detention visitors, lawyers, former detention staff and human rights organizations have repeatedly documented the devastating effects of long-term immigration detention.

Governments have argued for years that detention is an administrative necessity. Pjetri’s findings raise a different question: At what point does a system designed to manage migration become a system that predictably destroys the lives of people exposed to migration?

Evidence and responsibility

The issue of liability sits uncomfortably alongside the Commonwealth’s position in Abdel-Hady. On the one hand, the government argued that it should not be responsible because it believed the detention was lawful. On the other hand, the evidence of the humanitarian consequences of long-term detention has been impossible to ignore for many years.

Abdel-Hady is ultimately a case about responsibility. After the detention became unlawful, the Commonwealth appealed to the High Court and subsequently argued that it should be exempt from liability due to an “unintentional mistake”.

The Supreme Court accepted this defense

It is a reversal, if not a perversion, of constitutional principle.

What’s next?

As a democracy, Australia should be less concerned with the cost to taxpayers than it is with the cost to people detained illegally, including families who have endured years without parents, partners and carers.

What happens next is important. The demands for compensation that follow the Abdel-Hady case will determine not only how the wrongs of the past will be righted, but also whether governments will learn anything from them.

If unlawful detention is treated as an expensive administrative misstep, the underlying problems will persist.

But if Abdel-Hady launches a real investigation into how people have been detained for years without legal authority, it could signal the beginning of a more accountable immigration system.

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