Posted on 18 Aug 2016
Victorian Supreme Court Justice Michael McDonald has ruled that the class action pleadings can be amended to allow lawyers to additionally argue that detainees had been unlawfully held on Manus.
Slater and Gordon Principal Lawyer Rory Walsh said the firm sought the amendment after a landmark ruling in the Papua New Guinea Supreme Court in April that the detention of asylum seekers on Manus Island was illegal and in breach of PNG's constitution.
"We believe the PNG ruling is a significant legal development for our clients," Mr Walsh said. "We argued, and Justice McDonald accepted, that in light of the PNG ruling, our clients should be given the opportunity to argue their detention amounts to false imprisonment and to seek additional damages on that basis."
The class action was originally launched by Slater and Gordon in December 2014.
It is pleaded against the Commonwealth and its service providers G4S and Broadspectrum (previously known as Transfield), who operated the Manus detention centre under contract from the Commonwealth. The medical service provider on Manus, IHMS, has separately been joined to the proceedings by both G4S and Broadspectrum.
The action was initially pleaded on the basis that the detainees suffered serious physical and psychological injuries as a result of the conditions in which they were held on Manus Island, between November 2012 and 19 December 2014 - a period which included the February 2014 riots, in which one detainee was killed and many seriously injured.
“It is our case that the Commonwealth and its service providers have failed in their duty to prevent foreseeable harm to the men, women and children held on Manus Island, and that the detainees are entitled to be compensated for their injuries,” Mr Walsh said.
“Further, we allege that the Commonwealth deliberately held our clients in conditions which they knew were harmful, both as a means to coerce our clients to return to the countries from which they fled seeking refuge, but also to deter others from seeking refuge in a similar manner.
"We say for the Commonwealth to treat detainees in such a manner is unlawful.
"The Commonwealth owes a duty of care to all those in its custody, including people being held in offshore detention centres by the Commonwealth, and no matter where it detains people, we allege that it is required to provide the same level of care and oversight that the law requires of it within Australia."
"While we share in our group members' hope that their experiences at Manus might soon be coming to an end, we remain concerned to ensure that they should be treated in accordance with the standards required of the Commonwealth under Australian law.
"If the Manus Regional Processing Centre does close, as per the Immigration Minister‟s indications this week, we hope it will be an opportunity for this state of affairs to end."
"Simply moving the group to another location that has similar kinds of failings in the levels of security, infrastructure and services available would appear unlikely to satisfy the Commonwealth's duty of care here.
Mr Walsh said the additional claim of false imprisonment will cover the period from November 2012 up to May 2016.
"The recent amendments to the claim allege that the imprisonment of the plaintiff and group members at the Manus RPC was undertaken by the Commonwealth and its contractors, that it was unlawful, and that the Commonwealth knew that it was (or was likely to be) unlawful.
"The information being reported in the media this week would seem to very strongly support the plaintiff's allegations and we look forward to having the opportunity for the Court to consider the evidence that has accumulated about these matters."
Public Interest Immunity Challenge
The successful argument to amend the claim comes at the same time as Slater and Gordon prepares to fight what has been described by the Commonwealth as the largest public interest immunity challenge in Australian legal history, brought on behalf of the Manus Island detainees.
Mr Walsh said the trial for the class action was previously scheduled to start on 1 August 2016 but had been postponed, in large part because the Commonwealth had raised claims over many hundreds of documents for Public Interest Immunity, primarily on the grounds that their release would not be in the national interest or could harm bilateral relations with PNG, which the plaintiff contended had not been adequately or correctly made.
"We are challenging these claims as we don't accept that the Commonwealth has the legal basis to withhold these documents from scrutiny in this litigation, on the present evidence available, and in light of the likely significance of this material to the central issues in the dispute."
Mr Walsh said that the Commonwealth's attitude in seeking to withhold these documents is just one of a series of challenges faced in getting this matter to trial.
"We have also had to overcome the legal difficulties in conferring with 'whistle blower' witnesses who worked on Manus and who were subject to the potential of criminal sanction under the non-disclosure provisions of the Australian Border Force Act introduced by the then Abbott Government."
Mr Walsh said Slater and Gordon is running the class action on a No Win – No Fee basis. If successful, the firm will seek to recover costs from the defendants.
"Slater and Gordon has a long history of running public interest litigation to protect the rights of vulnerable groups, and we have acted on behalf of current and former immigration detainees for many years now. This case is a continuation of that work."