The High Court of Australia has delivered its unanimous judgment in Abdel-Hady v Commonwealth of Australia [2026] HCA 17, rejecting a novel common law defence advanced by the Commonwealth to liability for false imprisonment arising from unlawful immigration detention.
Slan Lawyers represented Mr Abdel-Hady in the proceedings, with Bret Walker SC, Michael Tanevski and Adam Khadra appearing as counsel.
The case concerned whether the Commonwealth and its officers could avoid liability to Mr Abdel-Hady for false imprisonment by relying on the state of the law as it was understood before NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs (NZYQ) was decided.
The Commonwealth accepted that, following the High Court’s decision in NZYQ, Mr Abdel-Hady's detention from 28 July 2022 was not authorised by law. It nevertheless argued that its officers should have a defence because they had detained Mr Abdel-Hady in accordance with the understanding of the law before NZYQ was decided.
The High Court unanimously rejected that argument and held that Commonwealth officers did not have the proposed defence to liability for false imprisonment. The Court held that to recognise it:
“would amount to an inversion, if not a perversion, of constitutional principle.”
The decision confirms that the Commonwealth cannot rely on such a defence to avoid liability to Mr Abdel-Hady for false imprisonment. It also has broader significance for others who may have been unlawfully detained in circumstances where there was no real prospect of their removal from Australia becoming practicable in the reasonably foreseeable future.
Any person who believes they may be affected by the decision is encouraged to contact us to discuss their circumstances and the options available to them.
The full judgment is available from the High Court of Australia.