Canberra Admitted It Detained Him Unlawfully — Then Asked the High Court for a Way Not to Pay. Seven Judges Refused.

The Commonwealth did not dispute that it had locked up Safwat Abdel-Hady when it had no lawful power to do so. It conceded that. What it asked the High Court to do was harder to defend: to recognise a new common-law shield so that admitting the wrong would not have to cost it anything. On June 10, 2026, all seven justices refused.

The decision in Abdel-Hady v Commonwealth^{[1]Abdel-Hady v Commonwealth of Australia [2026] HCA 17High Court of Australia · hcourt.gov.au“Recognising the proposed defence would amount to an inversion, if not a perversion, of constitutional principle; the executive's constitutional responsibility is to ascertain and comply with the law that limits its power.”} is being read mainly for what it does for former detainees. The sharper story is what it reveals about how the government chose to fight: not by denying the unlawful imprisonment, but by trying to be excused from the bill for it.

What did the government actually ask the court to do?

Abdel-Hady, an Austrian citizen who arrived in Australia in 1997, was taken into immigration detention in 2017 after his visa was cancelled on character grounds and held under sections 189 and 196 of the Migration Act. By July 2022, the Commonwealth conceded there was no realistic prospect of removing him^{[3]A High Court ruling could allow hundreds of former detainees to sue the government. A legal expert explains whyThe Conversation · theconversation.com“Approximately 350 people were released following the 2023 NZYQ ruling; from July 2022 the Commonwealth conceded there was no realistic prospect of removing Abdel-Hady; the High Court unanimously rejected the proposed defence.”} — yet he stayed detained. It also conceded it was vicariously liable for its officers and that, if they had no defence, neither did it. The one thing it contested was the bill: it urged the court to recognise a defence shielding officials who enforce an apparently valid law later found invalid. The justices unanimously declined^{[2]Government liability for false imprisonment: relying on past reasoning from the High Court is no excuseAUSPUBLAW (Australian Public Law) · auspublaw.org“All seven judges unanimously refused to recognise the proposed defence; prior false-imprisonment awards have ranged from a nominal one dollar to about $116,000 for 316 days; the Commonwealth conceded vicarious liability and the unlawfulness of the continued detention.”}.

Leaving Mr Abdel-Hady without a remedy for a substantial period of unlawful imprisonment is also unfair and highly undesirable.

Justice Michelle Gordon, High Court of Australia

Why does the court's language matter?

The rejection was not lukewarm. A three-judge plurality of Gageler CJ, Gleeson and Beech-Jones JJ held that recognising the defence "would amount to an inversion, if not a perversion, of constitutional principle"^{[1]Abdel-Hady v Commonwealth of Australia [2026] HCA 17High Court of Australia · hcourt.gov.au“Recognising the proposed defence would amount to an inversion, if not a perversion, of constitutional principle; the executive's constitutional responsibility is to ascertain and comply with the law that limits its power.”}. The same judges located the duty squarely on the executive, describing its constitutional responsibility as one "to ascertain and comply with the law that limits its power"^{[1]Abdel-Hady v Commonwealth of Australia [2026] HCA 17High Court of Australia · hcourt.gov.au“Recognising the proposed defence would amount to an inversion, if not a perversion, of constitutional principle; the executive's constitutional responsibility is to ascertain and comply with the law that limits its power.”}. Justice Michelle Gordon framed the practical stakes plainly: excusing the government, she observed, would simply shift the burden of unfairness from the state onto the person it had unlawfully imprisoned.

That is the accountability gap the Commonwealth tried to open. Having admitted the detention was unlawful, its legal strategy was to make the admission consequence-free.

Who does this expose the government to?

The ruling matters far beyond one man. About 350 people were released from indefinite detention after the 2023 NZYQ decision, and the reasoning in Abdel-Hady removes the argument the Commonwealth would most likely have used to resist their damages claims.

Prior awards for wrongful detention have ranged from a nominal one dollar to about $116,000 for 316 days^{[2]Government liability for false imprisonment: relying on past reasoning from the High Court is no excuseAUSPUBLAW (Australian Public Law) · auspublaw.org“All seven judges unanimously refused to recognise the proposed defence; prior false-imprisonment awards have ranged from a nominal one dollar to about $116,000 for 316 days; the Commonwealth conceded vicarious liability and the unlawfulness of the continued detention.”} held. Multiply even a conservative figure across hundreds of claimants and the exposure the government sought to avoid comes into focus.

What happens next?

The practical hurdles are real: limitation periods may bar older claims, and damages turn on the length and conditions of each person's detention. But the legal escape route the government argued for is closed.

The more telling risk is what the government does now. Justice Gordon noted that if Parliament is worried about officials' exposure, it can legislate good-faith protections — pointing to existing provisions of the Migration Act. The same instinct that produced the failed defence could just as easily reappear as a statutory bar on compensation. Having lost the argument that it should not have to pay for unlawful detention, the Commonwealth now has the option of legislating the same result. That is the development worth watching.