The man we know only as “NZYQ” is a convicted child sexual abuse offender. I don’t know the details of his crime, but I’m confident the three-year, four-month minimum sentence he got for it wasn’t enough. I am equally sure that the desperate facts of his personal history — he is a stateless Rohingya Muslim refugee who came to Australia by boat, still a teenager when he offended — offer no excuse.
Nevertheless, the criminal justice system’s failure is not for the migration system to repair. The High Court was inarguably right in declaring NZYQ’s indefinite detention unlawful for want of constitutional power, and granting him habeas corpus that mandated his release.
If that sticks in your craw, wait for this: NZYQ is entitled to substantial monetary compensation. He, and several hundred other detainees in the cohort caught by the High Court’s decision, only have to make the demand (or file suit).
While this may seem like the law delivering something that isn’t justice, really that’s just the moral panic speaking. The principle is sound, and the law can only do justice on a principled basis.
The court determined that NZYQ had been in detention unlawfully since May 30, 2023, the date at which it became clear that there was no prospect of his deportation becoming practicable in the reasonably foreseeable future, and therefore the date at which his detention by the executive under the Migration Act ceased to have constitutional authority and became pure punishment.
Although the act mandates that any “unlawful non-citizen” found in Australia must be detained, pending deportation or processing of a visa application, the grant of habeas corpus means that NZYQ cannot be lawfully re-detained unless and until the prospect of deportation becomes real again (which it never will). The government therefore had no choice but to give him a visa, albeit under highly controversial conditions and that will be legally challenged as well.
The government’s other move, to introduce preventative detention laws similar to those of the states, is also controversial but could lock NZYQ up again.
None of that changes the fact that, for six months, he was imprisoned without legal power. The Commonwealth committed the tort of false imprisonment against him, a personal cause of action he can now pursue. The remedy is damages.
False imprisonment is a very old common law action, a species of trespass against the person. It occurs where there has been a deprivation of a person’s liberty, caused by someone else’s intentional and unlawful act. Once the fact of imprisonment has been established by the claimant, the onus rests on the defendant to prove that they had lawful reason for imposing it.
There’s no question, given the High Court’s findings, that NZYQ was falsely imprisoned. The government has tacitly accepted, by its immediate action of releasing the other detainees, that the same will apply to the whole cohort (although the periods of false imprisonment will depend on the facts of each case).
The only question then is whether NZYQ is entitled to damages and, if so, how much. As a general rule, the fact that a cause of action is proved doesn’t automatically mean that compensation is due. Damages are meant to compensate for loss; no loss means no damages.
In the context of false imprisonment, in many cases over the years the damages awarded on a successful claim were $1 — what we call nominal damages. It may sound silly, but the nominal damages reflect the fact of wrongdoing in circumstances where no real harm was done.
This has been the result in some immigration detention cases because the courts have found that while a person was unlawfully detained, they could and would have been detained anyway if the authorities had done their job properly. This is partly because the mandatory detention provisions in the Migration Act operate not just when an immigration officer is aware of an unlawful non-citizen’s presence in the country, but also when they “reasonably suspect” the person is unlawfully here. That caveat captures a whole range of administrative sins.
The government could not argue in NZYQ’s case that he would have been detained anyway on the “reasonably suspected” basis because the court has definitively determined that there was no basis whatsoever after May 30 for anyone to think he could continue to be held under the law as it then was.
I suppose the government could try on a more novel defence — that, if it had known earlier that it was falsely imprisoning NZYQ (earlier than when the High Court told it so), then it would have immediately done what it did straight after the court’s decision: scramble in a mad panic to pass new laws in line with Home Affairs Minister Clare O’Neil’s declaration that, if she could lock him up, she would.
On that hypothetical, NZYQ was never going to enjoy liberty for long, and certainly not for six months or more. Therefore, it would be ridiculous to pay him compensation for the loss of something that realistically he would never have been allowed to have.
It’d be a cool argument, but it should fail. His false imprisonment is a fact. We should all be worried if the courts allow governments to paper over their misuse of power in such a way. I’m sure they won’t fall into that trap.
NZYQ and the others will get substantial compensation for their time falsely imprisoned. It’s unpalatable in this specific context, but reflects justice in all our interests.
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