Birchall, Ebony; Paull, Andrew --- "The Manus Island class action: Kamasaee v Commonwealth of Australia & Ors, S CI 2014 6770" [2018] PrecedentAULA 45; (2018) 147 Precedent 30

---

THE MANUS ISLAND CLASS ACTION

KAMASAEE v COMMONWEALTH OF AUSTRALIA & ORS, S CI 2014 6770

By Ebony Birchall and Andrew Paull

On 13 August 2012 the Australian government announced that asylum seekers who arrived by boat would no longer be processed in this country. Instead, they would be sent to one of two regional processing centres (RPCs), situated within the island nations of Nauru and Papua New Guinea (PNG). The government effectively rejuvenated the Howard-era ‘Pacific Solution’ – a policy that the then Minister for Immigration, Chris Evans, had previously described as ‘cynical, costly and ultimately ineffective’. The RPC in PNG was based on Manus Island; part of a small and remote province situated some 800 kilometres north of Port Moresby.

Just three months later, in November 2012, the first group of 17 asylum seekers, comprising 7 families and including 4 children, was sent to the Manus Island RPC. They arrived at a makeshift camp built from tents and repurposed sheds. Over the subsequent year, this small cohort was joined by hundreds of other asylum seekers, as the detained population rapidly swelled to over 1,300 – more than twice the original intended capacity of 500 persons.

Although the RPC was subject to strict secrecy laws and access by journalists was prohibited, there was increasing disquiet on mainland Australia about the safety, conditions and legality of the operations on Manus Island. Medical and aid organisations expressed concerns that asylum seekers being held at the RPC were at risk of serious physical and psychological harm. These concerns were heightened over the course of 2014 following the deaths of Reza Barati and Hamid Khazaei, two asylum seekers at Manus Island. Mr Barati’s death occurred as a result of the well-publicised, violent incursion into the RPC in February 2014. Mr Khazaei’s death was caused by an infection contracted in the RPC and has been associated with allegations of medical negligence.

In December 2014, Majid Kamasaee, an asylum seeker who had been held at the Manus RPC for around 11 months, instructed Slater and Gordon to commence a class action in the Supreme Court of Victoria on behalf of all persons who had been held at the Manus RPC since it re-opened and who had suffered compensable injuries. The case raised key questions around Australia’s responsibilities to those who arrive at our shores seeking protection. This litigation was complex and unique and, after a hard-fought battle, it achieved a number of noteworthy outcomes.

THE CLAIM

Mr Kamasaee, a 37-year-old Iranian man, had arrived in Australian territory in August 2013 to seek asylum. After being detained on arrival, he was first held in Darwin for around two weeks before being transferred to the Manus RPC. He was detained there for around 11 months before being transferred to detention at Melbourne Immigration Transit Accommodation in July 2014 for the purposes of medical treatment. During Mr Kamasaee’s detention at the Manus RPC he suffered physical and psychological injuries.

Mr Kamasaee brought claims against the Commonwealth of Australia, G4S and Broadspectrum (formerly known as Transfield). G4S and Broadspectrum are companies that were contracted to provide services in the Manus RPC during the claim period. Cross-claims were also made by the defendants against Wilson Security and International Health and Medical Service (IHMS); however, the cross-claim against IHMS was resolved during the course of the proceedings.

The action alleged negligence and false imprisonment by the Commonwealth, G4S and Broadspectrum.

While the case was filed in the Supreme Court of Victoria, it was pleaded in accordance with the substantive law of PNG because the detention and alleged negligence occurred in PNG.

NEGLIGENCE

The plaintiff’s case alleged that the defendants had engaged in negligence from 21 November 2012 until 19 December 2014, the date that the proceeding was commenced.

It is a well-established principle that, where a person deprives an individual of their liberty and assumes control of their environment, a duty of care arises at law to take reasonable care for the safety of that person.^[1] Indeed, in cases involving detention of asylum seekers on Australian territory, the Commonwealth has traditionally accepted that it owes a ‘non-delegable’ duty of care to those detained – that is a higher-level duty to ‘see that care is taken’.^[2]

In this case, however, while G4S and Broadspectrum acknowledged that they owed a duty of care to the Manus Island detainees, the Commonwealth denied the existence of such a duty. In short, it contended that the amendments to s198AD of the Migration Act 1958 (Cth), designed to permit offshore processing, effectively relieved the Commonwealth of its responsibility for those detained at the Manus RPC.

Central to this defence was the Commonwealth’s contention that, despite being funded by the Australian government and operated by Australian service providers, the RPC was under the control and management of the PNG government. The plaintiff, however, alleged that, while it was located in PNG, the centre was for all practical purposes under Australian control.

The standard of care which applied at the Manus RPC was also a source of contention.

The plaintiff alleged that the standard of care required of the defendants was the same as the standard applicable in respect of persons held in immigration detention in Australia and that the level of care should be informed by the institutional knowledge and practices that had developed over the previous decades of Australian immigration detention. Further, it was alleged that the Commonwealth ought not to be held to a lower standard of care simply because it had chosen to establish regional processing centres in areas with limited resources and service capacity.

This last argument draws upon the decision of S v Secretary, DIMIA [2005] FCA 549, regarding the medical services available at the Baxter immigration detention centre in remote South Australia. In that case Finn J stated that ‘having made its choice of location, the Commonwealth, not the detainees, should bear the consequences of it insofar as that choice has affected or compromised the medical services that could be made available’.

Indeed, the Commonwealth’s own published ‘Detention Health Framework’ sets a standard of care that ‘[a]ll people in detention are provided access to healthcare at a standard generally comparable to the health care available to the Australian community’.^[3] In regards to the standard of care owed in offshore centres, the government publication ‘Health care for asylum seekers on Nauru and Manus Island’ stated that the government intends the standard of healthcare provided in regional processing centres to ‘be broadly comparable to what is available in Australia and the best available in the circumstances’.^[4]

Notwithstanding these statements, the Commonwealth, G4S and Broadspectrum denied that they owed an equivalent standard of care to the asylum seekers to that which would be owed in Australia. Again, the implication was that, having introduced offshore processing, the Commonwealth should enjoy significantly lessened obligations to those who were being held in the Manus RPC than would be the case in Australia.

In terms of breach, the plaintiff’s case alleged that the defendants had negligently breached their duties of care in the following four areas:

1. Shelter and accommodation – which was alleged to be overcrowded, dirty, unhygienic and inappropriate for the vulnerable population being indefinitely detained therein.

2. Medical treatment – allegations included that the medical centre at RPC lacked supplies of common medications and did not adequately provide for the specialist medical needs of the asylum seeker population, including in particular psychiatric and mental health treatment. As a result, it was alleged that group members suffered protracted delays in receiving medical care and lengthy periods of suffering from untreated symptoms.

3. Security – it was alleged that the defendants had failed to keep the Manus detainees physically safe. In particular, it was alleged that the Commonwealth and G4S had failed to adequately respond to the growing risk of violence from local dissidents, which culminated in a violent incursion in February 2014 during which Reza Barati lost his life, gun shots were fired in the RPC and many other detainees were seriously injured.

4. Food and water – which was said to be prepared using unhygienic practices, below food safety standards and regularly contaminated with insects/stones/hair. It was also alleged that drinking water was stored unprotected from the tropical sun and provided for consumption warm, and that occasionally detainees endured long delays before being able to access potable water.

The plaintiff’s case alleged that group members suffered physical and mental harm as a result of these breaches of duty. It was further alleged that the breaches of duty by the Commonwealth and G4S comprised an intentional, punitive, cruel, high-handed and contumelious disregard for the group members’ rights, and therefore exemplary damages were claimed against those defendants.

FALSE IMPRISONMENT

Allegations regarding false imprisonment were added to the claim in amended pleadings filed in August 2016. The amendments were made following the decision of the Supreme Court of Papua New Guinea in Namah v Pato (2016) SC 1497 (the Namah decision), which found that the detention of group members at the Manus RPC was contrary to s42 of the PNG Constitution and was therefore unsupported by PNG law.

The allegations of false imprisonment claimed that from at least 21 November 2012 to at least 12 May 2016, the centre was operated as a closed place of detention and that this detention was unlawful.

The claim sought aggravated and exemplary damages from the Commonwealth because the people who were falsely imprisoned were vulnerable, under the care and protection of the Commonwealth, detained in poor conditions and experienced fear, indignity or humiliation.

The Commonwealth denied the allegations of false imprisonment, in part by asserting that the asylum seekers at Manus Island could choose at any time to leave the RPC by either voluntarily returning to their country of origin or, in the case of those with a positive refugee status who therefore could not return to their country of origin, by going to a third country.

The plaintiff pressed for further and better particulars of this specific defence, and the assertion that there was the option of simply leaving the Manus RPC to go to a ‘third country’. In response, the Commonwealth provided amended particulars and a schedule to its defence that listed potential ‘third countries’.

Notably, the schedule identified just one location that a person might be able to reside in without satisfying any visa or citizenship requirements: the little-known region of Svalbard, Norway. While it may be technically true that Svalbard imposes no visa requirements for residence, the official information about the region reveals the absurdity of this proposed ‘third country’. First, in order to reach Svalbard, a person will ‘need a valid visa to travel through the Schengen area’ of the European Union; a requirement which would likely rule out all of the Manus Island detainees. Secondly, Svalbard is about as close as one can get to the North Pole, and is not a location where any person could realistically be expected to build a new life. According to its official ‘Entry and Residence’ information, ‘Polar bears are common in Svalbard’ and local laws require that any person travelling outside ‘carry appropriate means of frightening and chasing off polar bears’. During winter, the temperature is below -30⁰C and the sun does not rise between late October and March. Moreover, ‘Practically all land in Svalbard is owned by the Norwegian state, and you normally can't buy land to build a private house.’

One of the most insidious tropes of the public debate over offshore detention – ‘if they don’t like it, they should just leave’ – was thus raised, tested and exposed as an absurdity by way of a rigorous pleadings dispute.

PROCEDURAL NOVELTIES

As a unique piece of litigation, complicated by matters of politics and geography, the case gave rise to a number of procedural novelties.

During the discovery process, the Commonwealth resisted production of thousands of relevant documents on the basis of public interest immunity – that is, that it would be contrary to the public interest for those materials to be disclosed. These and other claims to privilege and immunity were contested by the plaintiff, leading to extensive satellite litigation which resulted in six interlocutory judgments. This was described by counsel for the Commonwealth as the largest public interest immunity challenge in Australian legal history.

The process of obtaining witness evidence also proved to be complicated. In 2015, well after the proceeding was commenced, Parliament passed the Australian Border Force Act 2015 (Cth). The Act made it an offence for certain persons working in border protection, including as contractors or consultants, to disclose information that they had obtained in the course of their duties. This was punishable by up to two years imprisonment, meaning the many whistleblowers who had indicated a willingness to provide evidence in the class action were now exposed to a real risk of jail time.

Ultimately, the court exercised its broad case management powers under the Civil Procedure Act 2010 (Vic) and s33ZF of the Supreme Court Act 1986 (Vic) to authorise those whistleblowers to share their knowledge with the solicitors for the plaintiff for the purpose of preparing evidence for trial. The Manus Island class action was able to set a precedent in this regard as a similar approach was taken in the related Christmas Island class action being conducted concurrently in the same court.

Obtaining witness evidence from the detainees themselves also posed real difficulties. The large majority of potential detainee witnesses remained in the RPC and faced not only the tyranny of distance but also, at least until mid-2016, a prohibition on the use of mobile phones in the centre. Ultimately, these difficulties were overcome and the plaintiff filed outlines of evidence on behalf of 54 witnesses who were or had been detained at Manus Island and who were to give evidence at trial.

A related question arose as to how group members affected by the class action should be able to follow the progress of the proceeding. The plaintiff submitted that the trial of the proceeding ought to be live-streamed on the internet, so that the many affected group members who were unable to attend the trial in person would have an opportunity to follow the evidence. This followed an approach taken in the Black Saturday bushfires class action some four years earlier.^[5] After a contested application and against the objections of the defendants, McDonald J determined that considerations of open justice weighed in favour of live-streaming the trial.^[6] Unlike the Black Saturday trial, where access to the online streaming was password protected and limited to group members, McDonald J ordered that the stream be made accessible to the public at large.

From a class action perspective, there were a number of interlocutory disputes that went to important procedural aspects of the class action regime, such as the necessity of class closure prior to mediation^[7] and the appropriate scope of issues to be determined at the primary trial.^[8] This latter issue was determined, at the first instance, less than a month before the trial was due to commence as the defendants sought to limit the evidence adducible at trial to matters arising on the plaintiff’s personal claim (as opposed to the broader system allegations). Just two business days before the trial was due to commence the defendants filed an appeal of the trial judge’s decision on this issue. The defendants’ appeal was heard and dismissed the following day.^[9]

OUTCOME OF THE LITIGATION

On 14 June 2017, the parties announced to the court that they had reached an agreement to settle the claim for $70 million plus legal costs. The settlement is believed to be the largest human rights class action settlement in Australian history.

On 6 September 2017, the court approved the settlement. As part of that process, the court approved a Settlement Distribution Scheme, which is a document that sets out the steps, procedures and powers involved in distributing the settlement funds to group members.

Despite the language and geographical difficulties faced by group members there was an extremely high level of engagement with the Scheme. Eighty-nine per cent of eligible group members registered to receive a settlement distribution, and within four months over 97 per cent of the settlement funds were distributed to those group members.

CONCLUSION

The Manus Island class action was a novel piece of litigation, complicated by matters of politics and geography, as well as being attended by the usual complexities and difficulties of large-scale and high-profile class action claims. It was a long and painstaking battle for social justice. In terms of sheer numbers, it was the largest class action that Slater and Gordon has ever run.

Although the $70 million in compensation is notable in and of itself, and has made a significant difference to the lives of almost 1,700 group members, it was not the only achievement resulting from this litigation. It debunked one of the most pervasive myths of the public debate about offshore detention, exposing it as a fallacy. The secrecy provisions of the Australian Border Force Act 2015 (Cth) were able to be overcome. Hundreds of thousands of discovered documents were analysed to explore the question of the Commonwealth’s responsibility for offshore centres and the applicable standards of care.

This litigation was far from the traditional instrument used by advocates in the area, which usually involve shorter and sharper High Court or Federal Court applications designed to challenge or overturn specific legal points or provisions. Rather, it was a longer-term civil proceeding that required mountains of evidence and relentless procedural disputes to reach a conclusion – but those very complexities were what allowed it to achieve these outcomes. The factual and legal uncertainties present in the Manus Island context could best be explored by a detailed examination of what had actually occurred there – assessments of the existence of duties of care, the appropriate standards to be applied and the causes of events at the RPC, in cases like this, can best be informed by documentary and witness evidence and expert opinion, rather than reliance on dogmatic legal arguments.

The outcomes in this case highlight the role that civil litigation, and class actions in particular, can have in addressing human rights issues and holding governments and corporations to account, even in cases of significant factual complexity. The unique combination of a civil class action and a commitment to spending the time and resources required to investigate the factual evidence in detail made the difference in this case, and ensured that a means of redress was available to a very large group of vulnerable people who would not have had the ability to seek a remedy on their own.

The staff at Slater and Gordon would like to pay tribute to the courage and strength of the people who were detained at Manus Island. We also wish to acknowledge the many witnesses who came forward, some at personal risk, without whom these outcomes would not have been possible.

Ebony Birchall and Andrew Paull are both lawyers in the Project Litigation team at Slater and Gordon Lawyers and were part of the team which acted on behalf of Mr Kamasaee in the Manus Island Class Action. PHONE [phone] EMAIL [e-mail] and [e-mail].

---

^[1] Howard v Jervis [1958] HCA 19.

^[2] S v Secretary, Department of Immigration & Multicultural & Indigenous Affairs [2005] FCA 549; A S v Minister for Immigration and Border Protection & Anor [2014] VSC 593.

^[3] Department of Immigration and Citizenship, ‘Detention Health Framework’ (2007).

^[4] Department of Immigration and Border Protection, ‘Health care for asylum seekers on Nauru and Manus Island’ (2012) 21.

^[5] Matthews v SPI Electricity and SPI Electricity Pty Ltd v Utility Services Corporation Ltd (Ruling No. 14) [2013] VSC 37.

^[6] Kamasaee v Commonwealth of Australia & Ors (No. 9) (Live streaming ruling) [2017] VSC 171.

^[7] Kamasaee v Commonwealth of Australia & Ors (No. 8) (Class closure ruling) [2017] VSC 167.

^[8] Kamasaee v Commonwealth of Australia & Ors (No. 10) (Issues for trial ruling) [2017] VSC 272.

^[9] Commonwealth of Australia and Kamasaee, Majid Karami; G4S Australia P/L; Broadspectrum (Australia) P/L (previously Transfield Services (Australia) P/L) and Wilson Protective Services (PNG) Ltd [2017] VSCA 121.