Tort – False imprisonment – Defences – Where plaintiff detained under s 189(1) of the Migration Act 1958 (Cth) following visa cancellation – Where since 28 July 2022 there was no real prospect of plaintiff's removal from Australia becoming practicable in reasonably foreseeable future – Where in November 2023 NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs (2023) 280 CLR 137 reopened and overruled Al-Kateb v Godwin (2004) 219 CLR 562 – Where effect of NZYQ was that ss 189(1) and 196(1) of the Migration Act did not authorise plaintiff's detention from 28 July 2022 – Where Commonwealth accepted elements of tort of false imprisonment established – Where Commonwealth accepted it was vicariously liable for liability of detaining officer – Where Commonwealth propounded novel common law defence to negative liability from 28 July 2022 to time of orders in NZYQ on 8 November 2023 – Whether Commonwealth's defence should be recognised to negative common law liability of detaining officer for tort of false imprisonment.
Constitutional law – Judicial power – Where detaining officer reasonably understood statutory duty to be to keep plaintiff in immigration detention by reason of Al-Kateb – Whether protection of officer from liability would enhance respect for and compliance with law declared by High Court – Whether Queensland v Stradford (a pseudonym) (2025) 99 ALJR 396; 421 ALR 376 supported novel defence.
Words and phrases – "agency", "bound to execute", "common law defence", "common law judicial immunity", "compliance with the law", "constitutional invalidity", "constitutional responsibility", "derivative liability", "detaining officer", "detention", "direct liability", "false imprisonment", "immunity", "institutional imperatives", "judicial independence and impartiality", "judicial power", "law enforcement privilege", "legal norm", "legislative power", "no real prospect of removal", "novel defence", "principle of legal equality", "purported performance", "reasonably foreseeable future", "rule of law", "separation of powers", "statutory duty", "unlawful non-citizen", "vicarious liability".
Constitution, Ch III.
Migration Act 1958 (Cth), ss 3A, 5, 189(1), 196(1), 198.
Public Service Act 1999 (Cth), ss 7, 13(4), 15.
Canadian Charter of Rights and Freedoms, s 24.