Detainees could be in line for millions

The High Court’s landmark decision to overturn indefinite detention could trigger a wave of ‘inevitable and undefendable’ damages claims.

Opposition immigration spokesman Dan Tehan and Opposition Leader Peter Dutton in Canberra on Wednesday. Picture: NCA NewsWire / Martin Ollman

The Albanese government could be on the hook for tens of millions in compensation following a warning from the solicitor-­general that the High Court’s landmark decision to overturn indefinite detention could trigger a wave of “inevitable and undefendable” damages claims.

Solicitor-General Stephen Donoghue KC warned during last week’s High Court ruling that overturning the policy under which dozens of criminals facing deportation were detained indefinitely would open the door to “undefendable damages claims”.

“How many, it remains to be seen,” he said.

He warned the immigration department’s response to the “inevitable” claims that would arise from the decision would be complicated by the difficulty in showing retrospectively when the department determined that each individual was unlikely to be able to be removed from the country.

Should the solicitor-general’s concerns be borne out, dozens of former detainees – including several convicted murderers and rapists – could be entitled to compensation for some or all of their time in immigration detention.

Human rights lawyers and class action firms are understood to be waiting to see the High Court’s written decisions before pushing the button on any compensation claims.

While the quantum of damages is unknown, the number of detainees affected – some 83 have been released to date, a number that could continue to grow – and the lengthy detention of many of those could quickly see the total damages bill run into the tens of millions of dollars. Some of the detainees released to date had spent almost a decade in indefinite detention.

Greg Barns SC, a spokesman for the Australian Lawyers Alliance, told The Australian the decision was likely to pave the way for damages. “If it’s found that you’ve been wrongly detained or illegally detained, generally speaking, you have what’s called a false imprisonment claim. And in circumstances where there’s no argument that you’ve been unlawfully detained, then generally the issue is how much is the compensation,” he said. “People who have been unlawfully detained have also often suffered physical and particularly mental harm, so they are factors that would need to be taken into account.”

The warnings came as the government flagged it would introduce emergency legislation on Thursday to respond to the ruling. The Australian understands the National Security Committee has been working on a response, amid suggestions the government may only be able to impose tougher conditions on the detainees’ bridging visas.

“I can indicate to the chamber that the government intends to introduce legislation shortly to further respond to the decision of the High Court and we look forward to the opposition’s support in that regard,” government Senate leader Penny Wong said on Wednesday.

Both chambers of parliament will sit on Thursday, while the Senate is scheduled to sit for an extra day on Friday, giving politicians ample time to push through legislation.

Following a fiery question time in which Peter Dutton appealed to Anthony Albanese not to leave for APEC until the emergency legislation had passed, opposition immigration spokesman Dan Tehan called for the breakdown promised by Immigration Minister Andrew Giles of the number of murderers, rapists and sex offenders in the group of 83.

“We want a legislative response which sees these people detained once again,” Mr Tehan said. “We want to hear from the government how they are going to do that … That is what they should have been working on for the last two months.”

The Opposition Leader said the detainees, who will receive $336 a fortnight in Newstart payments as well as short-term accommodation, were having a “holiday in a motel at taxpayers’ expense”.

Government sources have said none of the individuals in the cohort were subject to an adverse security assessment.

West Australian Police Commissioner Col Blanch said that seven of the 32 released in the state remained subject to conditions requiring them to report to police, while another four were domestic violence offenders.