NZYQ cohort: Taxpayers may pay ‘tens of millions’ of dollars in compensation for foreign-born criminals

The Commonwealth could be exposed to compensation claims for hundreds of foreign-born criminals after another landmark NZYQ decision in the High Court.

The High Court on Wednesday dismissed the Government’s argument that it should have immunity from compensation claims over the so-called NZYQ cohort held in immigration detention.

The decision could open taxpayers up to further liabilities relating to more than 300 people released from detention following a November 2023 High Court ruling.

Shadow home affairs minister Jonno Duniam described it as “another devastating blow for a Government” and insisted the decision could lead to “tens of millions” of dollars in compensation.

“This Government failed to properly manage the legal and practical consequences of NZYQ,” Senator Duniam said.

“This is another NZYQ disaster for the Albanese Government.

“Since the original NZYQ decision, Australians have been forced to watch dangerous non-citizens released into their communities, repeated legal setbacks, and a Government constantly caught flat-footed.”

The landmark 2023 High Court decision had found it was “unconstitutional” to indefinitely detain stateless people, even if they had been convicted of a serious crime, has had serious repercussions.

Senator Duniam’s concerns over potential costs come after the full bench of the High Court on Wednesday ruled on a case brought by Austrian citizen Safwat Abdel-Hady who has lived in Australia since 1997.

Mr Abdel-Hady was on various visas since his arrival in the 1990s, until it was cancelled in March 2017.

He was later detained in August 2017 before being released in 2024 after officials deemed through a 2022 health assessment that his thrombophilia made him “medically unfit to travel” on a plane.

The assessment found that he had “no real prospect of removal” from Australia “in the reasonably foreseeable future” so could not be detained.

Mr Abdel-Hady had claimed damages for “false imprisonment for the period of his detention”.

While the Commonwealth admitted the detention after the 2022 health assessment was unlawful, it argued against any liability. But the High Court ruled the defence should not be recognised.

Home Affairs Minister Tony Burke wasn’t available for comment but a spokesman for the Albanese Government acknowledged the finding on Wednesday.

“The Commonwealth notes the decision of the High Court and is carefully considering the judgement and its implications,” he said.

Asylum Seeker Resource Centre’s deputy chief executive Jana Favero labelled Monday’s decision as a “critical step towards justice” for those detained for years and a “lesson” for governments.

“This is a significant outcome, because it paves the way for people to finally access justice for the cruelty inflicted on them,” she said.

“We have always said that indefinite detention is harmful and comes at the cost of people’s health, their mental health, and their wellbeing.

“Families have been separated and people are still living with the consequences of having years of their lives stolen from them.

“People who came here seeking protection have been and in many cases, still are subjected to a system that stripped them of freedom, dignity and hope.

“No government should be able to unlawfully detain people and then walk away from the damage it has caused.

“The lesson from this case is clear — this harm should never have been inflicted, and the government must ensure it never happens again.”