A Settlement, not a Solution.

By Sarah Yigit

The Nauru and Manus Island offshore detention centres have been at the cornerstone of continuous controversy. A class action brought against the Australian Commonwealth on behalf of 1923 asylum seekers and refugees detained on Manus Island has been approved for settlement by the Supreme Court of Victoria with current and former detainers awarded 70 million dollars compensation, because of the appalling conditions and unlawful treatment they have experienced. This is Australia’s largest human rights class action settlement to date.

The class action was brought against the Australian Commonwealth and contractors G4S and Broadspectrum (formerly Transfield). The statement of claim was amended following the decision by the Papua New Guinea (PNG) Supreme Court that the Manus Island processing centre is illegal and unconstitutional, with additional claims brought against the Australian Commonwealth for false imprisonment and negligence.

One of the most important arguments made by the detainees in this case was that the Australian Commonwealth owes a duty of care to those held on Manus Island. It was argued that G4S and Broadspectrum were given power under a contract with the Australian Government to provide certain services, including providing food and water, shelter and accommodation and security. As such, the detainees argued that the services provided were done so by an agent of the Commonwealth.

Claims settled prior to trial?

All of the parties, including the detainees and Commonwealth, came to an agreement in relation to compensation prior to the matter reaching trial. The result of this decision is that the allegations made against the Commonwealth and the evidence supporting the allegations of mistreatment and systemic abuse will not be tested (and confirmed or rejected) in court.    Further, the claim that the contract for the provision of services imposes a duty of care on the Commonwealth will not be tested. The substantial settlement is not an admission of liability.

It is safe to assume that this settlement was a strategic decision by the Commonwealth, taken to avoid the far greater risk of the legal recognition of a duty of care to the asylum seekers and refugees held in offshore processing centres. In recent months, reports by Amnesty International and the Australian Senate’s standing committee on Legal and Constitutional Affairs[1] have highlighted the lack of accountability and transparency in Australia’s offshore detention policy.  As evidence of human rights abuse inside the offshore processing centres mount, fractures in the bipartisan support for the policy have started to show as evidenced by Liberal MP Russel Broadbent’s recent endorsement of the #bringthemhere campaign.

What happens next?

Settlement of this case does not on its own solve the problem of offshore detention and the harm it is inflicting on vulnerable asylum seekers and refugees. The Australian and PNG governments are moving to close the camps on Manus Island, but asylum seekers and refugees are faced with unpalatable and unsafe options in the wake of these closures.

Resettlement in Australia is a more humane and effective allocation of resources. In fact, ending offshore detention on Nauru and Manus Island could save 2 billion dollars by 2020. Australian Lawyers for Human Rights is just one of many community organisations devoted to championing a more effective and humane policy alternative. Instead of using costly and cruel methods to closing unsafe pathways to protection, such as closing Manus Island with no possibility of resettlement in Australia, we need to look at opening new pathways. Asylum seekers from Nauru and Manus Island must be brought to Australia. #EvacuateNow Nauru and Manus Island and #BringThemHere.

Sarah Yigit Sarah Yigit is studying a Bachelor of Laws at La Trobe University. Sarah is undertaking an internship with Australian Lawyers for Human Rights and is currently completing a research project for the Australian Lawyers for Human Rights Refugee Sub-Committee.

[1] Senate Legal and Constitutional References Committee, Parliament of Australia, Serious allegations of abuse, self-harm and neglect of asylum seekers in relation to the Nauru Regional Processing Centre, and any like allegations in relation to the Manus Regional Processing Centre (2017) v-vi.

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