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Landmark High Court Ruling Challenges Government with Prospect of Damages for Unlawful Detention

by | Nov 17, 2023 | Migration

On November 8th, the High Court of Australia delivered a ground-breaking verdict declaring indefinite immigration detention as illegal. This ruling, overturning a twenty year old practice initiated by the previous coalition government, has set off a series of hurried releases of detainees, forcing the government to confront the potential of a massive damages claim.

The case involved a plaintiff, previously convicted of child offences, whose visa was revoked as a consequence. At the end of his sentence because he did not have citizenship of any country it was impossible to deport him and he was placed in indefinite detention. The High Court deemed such detention unconstitutional, mandating his release and as a consequence, that of others in similar circumstances, including those fearing persecution in their home countries.

As detainees find themselves released into the Australian community, questions arise about the potential for seeking damages for false imprisonment – a term encompassing the unlawful restraint or deprivation of one’s freedom of movement. For those who have faced years of unlawful attention, the prospect of legal action against the Australian government becomes a compelling consideration.

To succeed in a false imprisonment claim, several key elements must be established, including the government’s intentional actions, the unlawfulness of the restraint, and a total deprivation of the persons liberty. The duration of the restraint is also a crucial factor.

This would not be the first instance of legal action against the government within a migration context. Years ago, an Australian citizen, mistakenly detained as a foreign national, pursued damages through legal channels.

Given the substantial number of detainees affected by the High Court decision, the looming threat of a significant damages claim is a challenge the government is likely keen to navigate or avoid altogether.


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