Published daily by the Lowy Institute

Offshore detention: What the landmark settlement fails to resolve

A trial would have shed light on a detention regime that has thus far remained shrouded in deepest secrecy.

Protestors in Melbourne in February 2016 (Photo; Anadolu Agency/Getty Images)
Protestors in Melbourne in February 2016 (Photo; Anadolu Agency/Getty Images)
Published 15 Jun 2017   Follow @sangpillai

Australia’s largest ever immigration detention trial has ended before it began, with the largest human rights settlement in Australian legal history. The Australian government and its offshore detention contractors will pay $70 million in compensation to lead plaintiff Majid Kamasaee and 1904 other asylum seekers detained on Papua New Guinea's Manus Island between 2012 and 2016, plus legal costs estimated at $20 million.

The settlement agreement is unquestionably a practical win for the plaintiffs in the case, who stand to receive substantial individual payouts. But it’s also the latest, and largest, lost opportunity to clarify the legal boundaries of Australia's immigration detention.

To date, these legal boundaries have not been well-defined. There are various reasons for this, one of which is the fact that few cases in this area ultimately reach the courtroom. Lawyers have reported that in the past two years, at least 80 compensation cases have been brought against Australia's Department of Immigration and Border Protection, and the majority of these have been settled in advance of a hearing.

When a case ends in settlement, the parties involved get a resolution but broader legal questions that may be relevant to future cases often remain unresolved. The cost of this is particularly high in this instance. Kamasaee’s case was to be the first in Australian legal history to thoroughly examine the role played by the Australian government in relation to its offshore immigration detention regime.

At the heart of the case were two issues: first, whether the government breached a duty of care to the Manus detainees, by holding them in conditions that caused physical and psychological harm and that fell short of Australian standards, and second, whether the government’s conduct amounted to unlawful imprisonment.

Had the case proceeded to trial, these questions would have been forensically interrogated over a six-month period, in hearings live-streamed to the public. More than 70 witnesses would have given evidence, and at least 200,000 documents would have been examined. The trial would have examined the food, shelter and security provided in the Manus Island detention centres, and the events of the February 2014 riot that resulted in the death of Iranian asylum seeker Reza Berati. The trial would have shed light on a detention regime that has thus far remained shrouded in deepest secrecy.

At the end of it all, the Victorian Supreme Court would have handed down a ruling, determining the extent of the government’s involvement in the detention scheme, as well as whether its conduct overstepped legal boundaries. The court’s decision would have provided a foundation for people seeking to bring actions in this area in the future.

The settlement means that no such scrutiny will take place, and the question of government responsibility will remain unresolved. Already this has had a tangible effect on other litigation, which is very rarely conducted on the scale of Kamasaee’s case. Lawyers in a case that was to run parallel to Kamasaee’s case, in the PNG Supreme Court, have said that they will seriously consider withdrawing proceedings in light of the settlement.

Sadly, the Australian people, lawyers, and other plaintiffs will now remain in the dark about the nature and extent of Australia’s involvement in offshore detention, and about the limits to what the Australian government is legally allowed to do. In preserving the shroud over Australia’s offshore detention regimes, this settlement and those before it shed light only on the lengths the government will go to maintain secrecy in this area. That, in itself, is a matter of public interest.

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