From: Neil
Foster <neil.foster@newcastle.edu.au>
Sent: Wednesday
10 June 2026 03:21
To: obligations@uwo.ca
Subject: ODG: HCA
on liability for false imprisonment under mistaken view of law
Dear Colleagues;
The decision of the High Court of Australia handed down today in Abdel-Hady v
Commonwealth of Australia [2026] HCA 17 (10 June 2026) reaffirms
the principle that it is no defence to an action for false imprisonment by a
government official that they reasonably thought they were complying with the
law.
The background is that Mr Abdel-Hardy is a non-citizen who would
have been subject to deportation, except that circumstances (here a health
condition) meant that there was no real prospect of his removal from Australia
becoming practicable in the reasonably foreseeable future. A prior decision of
the High Court had held that his detention was still justified in those
circumstances (Al-Kateb v Godwin (2004) 219 CLR 562); but the more
recent decision of NZYQ v Minister for Immigration, Citizenship and Multicultural
Affairs (2023) 280 CLR 137 had over-ruled this. Hence Mr Abdel-Hady's
detention was now known to have been invalid from the date it was known that he
could not practicably be removed until the date of the decision in NZYQ.
He is suing the Commonwealth for false imprisonment for that period.
All 7 members of the court agree that his action should succeed,
and that neither the Commonwealth nor their officers have a valid defence to
the action for false imprisonment. They agree with the similar persuasive
decision of the UK House of Lords in R v Governor of Brockhill Prison; Ex
parte Evans [No 2] [2001] 2 AC 19 (itself following a decision of the NSW
Court of Appeal in Cowell v Corrective Services Commission of New South
Wales (1988) 13 NSWLR 714.)
One of the Commonwealth's key arguments was that this case was
analogous to the decision of the High Court in Queensland v Stradford (a
pseudonym) (2025) 99 ALJR 396; 421 ALR 376 , where it was held that
imprisonment of the plaintiff by court officers acting under judicial orders
did not give rise to civil liability. There are interesting discussions of Stradford and
some difference of opinion within the court as to the basis for that decision,
but in the end all the court here agree that for constitutional and separation
of powers reasons, an immunity from suit should attach to officers
executing court orders, which does not attach to public servants acting
on their own view of the law. Perhaps where some will see this as very
stark in cases like this, where the public servants were acting in direct
reliance on the High Court decision in Al-Kateb. But as the members of
the court here all agree, the ultimate source of authority for detention had to
be found in legislation, and the High Court has the power to over-rule its own
previous interpretation of the legislation. (Authorities from the US and Canada
taking a different view were mentioned, but in the end ruled not to be
persuasive given the differing constitutional arrangements in place in
Australia.)
Edelman J differs to some extent from the other members of the
court (though there are 5 separate judgments, so his Honour was not the only
member of the court to offer his own perspective.) The question is whether it
was necessary to consider two possible different rationales for liability-
either 'direct' liability where the public servants could be seen as true
'agents', or vicarious liability (accepting the analysis of the three different
types of 'strict' liability accepted in Bird v DP.) Most of the court
simply noted that the Commonwealth had conceded vicarious liability; Edelman J
seemed to think that agency liability was the more correct analysis. But in the
end this did not make a difference to the outcome.
The Commonwealth had in broad terms accepted that they could not
succeed on the existing law, and had tried to argue for the development of a
'novel' defence applying in very limited circumstances. But as the members of
the court generally noted, the limits of the Commonwealth's suggested defence
were uncertain and inconsistent with general principle. To quote the plurality
(Gageler CJ, Gleeson & Beech-Jones JJ):
[7] No such common law defence should be recognised. No
development of the common law can be inconsistent with constitutional
principle. Far from protecting the judicial declaration of the law and
enhancing the responsibility of the executive branch of government to ascertain
the law that limits its own power and to comply with that law, as the
Commonwealth argues, recognition of the propounded common law defence would subvert
the accepted foundational constitutional principles of judicial authority and
executive responsibility. It would transform the responsibility of an
officer of the executive government of the Commonwealth to ascertain and comply
with the law that limits the power of the officer into a common law immunity
from a common law consequence of action which has subsequently been judicially
determined to have transgressed such a legal limit and therefore to have
exceeded that power. (emphasis added)
Regards
Neil
NEIL FOSTER
Associate Professor, Newcastle School of Law and Justice
College of Human and Social Futures
E: neil.foster@newcastle.edu.au
Further details: http://www.newcastle.edu.au/profile/neil-foster
My publications: http://works.bepress.com/neil_foster/ , http://ssrn.com/author=504828
Blog: https://lawandreligionaustralia.blog
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