There are numerous individual common lawsuits alleging mistreatment and negligence of asylum seekers on the part of the government and its agents. However, public interest lawyer at Maurice Blackburn, Lizzie O’Shea, says there’s no “silver bullet” in the armoury of remedies available to asylum seekers and refugees.O’Shea is concentrating on a class action on behalf of people held on Christmas Island over the previous three years, alleging the Commonwealth government breached its duty of care in relation to a range of issues, including its failure to provide for the adequate education of detained children prior to December last year, and health care generally.The class action is still at the directions stage and is unlikely to come to trial in the supreme court of Victoria before the end of the year. However, last month Justice Stephen Kaye ordered the Commonwealth to delay the planned demolition of Aqua and Lilac compounds on Christmas Island.Lawyers for the plaintiffs’ said they wanted access to the compounds to inspect conditions in which people were being detained.The Department of Immigration and Border Protection insisted that inspection only be permitted with conditions that photographs and video are taken by department staff.
Maurice Blackburn has also brought proceedings against the Commonwealth and service provider G4S on behalf of a detainee who lost an eye in last year’s Manus Island riots.
Slater & Gordon is running a class action too: against the Commonwealth, Transfield, and former contractor G4S, in relation to the alleged negligent treatment of asylum seekers on Manus island.
The lead plaintiff is Majid Karami Kamasaee, an Iranian national, who at age 15 was badly burned in a heater fire. He entered Australia in August 2013, and was taken into custody by the Commonwealth.
He alleges that he was intentionally denied medical treatment and as a result his injuries worsened.
The plaintiffs plead that the supply of food and water on Manus is below a standard that would prevent the spread of infectious disease. Similarly, shelter and medical care are not of a level to prevent distressing physical discomfort and deterioration of physical or mental health.
Also, there is insufficient protection against physical violence, intimidation, discrimination and bulling.
Transfield has already unsuccessfully sought to have the case struck out, but Slater & Gordon will have to plead again for aspects of the claim against the service provider.
The Manus Island case presents certain advantages from the plaintiffs’ point of view, because conditions there have been documented by Amnesty International, the UNHCR, the Commonwealth Ombudsman and even reports by Guardian Australia.
Slater & Gordon’s head of class actions, Ben Phi, says “Independent reports have consistently found that the Manus centre is squalid and overcrowded, that food and water is often limited or contaminated, that there is little relief from the oppressive heat and humidity, and that the medical facilities are inadequate.
“If successful, the case will establish that the Commonwealth, having chosen an offshore detention regime, is nevertheless required to ensure that asylum seekers are detained in conditions that accord with Australian standards.
“We are looking to establish legal principles in relation Australia’s obligations to detainees.”
The plaintiffs will have to get past the Commonwealth’s argument that the management of the Manus Island Regional Processing Centre is not its responsibility – it is in the control of the government of Papua New Guinea.
This, on its face, is a rather unsophisticated fiction, as responsibility for the management of the centre has been delegated by the Australian government to Transfield, and before that to G4S. The terms and conditions of how Transfield runs the centre and manages the detainees are determined by the Department of Immigration. And, of course, Australia pays the bill.
It’s a long bow for the government to say that what is alleged is not its doing or responsibility, yet ultimately that threshold issue will have to be decided by the Victorian Supreme Court, and that may not be till the middle of next year.
The remedy for these civil actions lies in awards of damages, not in findings as to the legality of detaining people in forbidding environments. The emphasis in refugee litigation has moved away from seeking administrative law remedies, instead to whatever the common law of negligence may offer.
Administrative law oversight has been screwed so tightly by successive governments, and especially by last December’s amendments to the Migration Act and the Maritime Powers Act.
That said, nothing is beyond the inventiveness of lawyers versed in the area, but for now, administrative remedies are looking less and less within reach of detainees.
While damages for negligence are one thing, they do not overturn the policy of internment and deprivation of liberty.
Litigation requires discovery of large amounts of documents that generally are not publicly available. This is one way of casting light on hitherto hidden process, management practices and policies.
However, it is the discovery of disturbing material that invariably sees the Commonwealth rush to settle with immigration plaintiffs. This was the case with earlier individual claims alleging mistreatment at the Baxter and Woomera detention centres.
It is only if cases come to trial that there is a prospect of seeing what the Commonwealth and the service providers are really doing in the name of the Australian people and that legal principles can be established.
The media has been denied access and so has difficulty reporting consistently on conditions, while Transfield’s case officers and other staff are required to sign confidentiality agreements, with threats of legal action if they discuss how the Manus centre is managed and detainees treated.
The result is that one of the grim chapters in Australia’s history is only revealed to the public in fragments.
Claims based on seeking awards of damages have the prospect of publicly shaming the government, although so far normal impulses of shame seem elusive. Instead, the government makes a meal of shooting the messenger.
There are other ways in which unyielding details come to the surface – the Human Rights Commission’s inquiry and Forgotten Children report on Nauru and the follow-up Moss review and now a Senate inquiry. They provide illuminations, but not enforceable solutions.
Nor can a silver bullet be found in international law. Australia has obligations under the Refugee Convention and the Convention on the Rights of the Child and gives lip service to the requirement of “best interest assessment”.
Canada and the UK have enshrined the requirement in their domestic law, we haven’t. Consequently, Australia pays lip service to the obligation, but the administrative process falls a long way short.
There is no simple legal way around the system of off-shore processing. Most of the loopholes are gone and it’s now a case of arguing about the conditions of detention.
Without human rights obligations enshrined in our domestic law, the remedies for those held indefinitely in distress without charge are of limited utility.
Yet it is a standard mantra of conservative pundits that the common law is all we need to save our soul from government excess.
If we keep proceeding down that path, where people in our care can be psychologically, and sometimes physically tortured, with only limited legal remedies available to them, then Australia will end up in a very dark place.