Asylum-seekers sent offshore can challenge govt in Fed Court

Asylum-seekers sent to processing centres can keep pursuing legal action against the Commonwealth.

George Newhouse, principal solicitor at the National Justice Project. Picture: AAP

Asylum-seekers who have been sent to offshore processing centres can keep pursuing legal action against the Commonwealth in the Federal Court, in a ruling hailed as a “major legal victory” by their lawyers.

The High Court on Wednesday also agreed with Home Affairs Minister Peter Dutton that the government can argue asylum-seeker claims should be dismissed if they breach a certain section of the Migration Act.

Australian Lawyers Alliance spokesman Greg Barns SC described the decision as a “small win for the Commonwealth but probably a bigger win for the plaintiffs” – four child asylum-seekers who were either sent to or born on Nauru.

“The High Court has made it clear that the Commonwealth is a model litigant, which means it should not seek to bar claims made by asylum-seekers unless there is merit in the argument seeking to bar the claim,” he said.

“Importantly, the court has not accepted an argument that any offshore asylum-seeker should have to sue in the High Court. This would have meant more expense and delay.

“The bottom line is that claims for breaches of duty of care by the Commonwealth towards asylum-seekers it has detained offshore can still be litigated.”

The four respondents commenced proceedings in the Federal Court as representatives of more than 50 other asylum-seekers, arguing the government had failed in its duty of care to asylum-seekers on Nauru.

The Commonwealth disputed the jurisdiction of the Federal Court to hear the cases and appealed to the High Court in September last year.

George Newhouse, director of the national justice project who led the asylum-seekers’ legal team, said they had argued the Federal Court had the authority to hear these claims and the High Court on Wednesday agreed.

“This decision vindicates the right of our clients to seek justice for the cruel and inhumane treatment that they suffered,” he said.

“By taking legal action against the government, our clients hope to access the long-term medical and psychological care that they need.”

Mr Newhouse vowed to fight in the Federal Court “to make the government accountable for what it has done to these children”.

The High Court upheld the Commonwealth’s ability to use section 494AB of the Migration Act as a defence in particular legal proceedings in state courts and the Federal Court.

Section 494AB prohibits certain legal action against the Commonwealth by people in offshore processing countries in any court but the High Court.

“In practical terms, it creates a defence which the Commonwealth may, but need not, plead to specific claims in all courts, except the High Court,” the judgment says.

“If no practical benefit is to be gained by raising section 494AB, the Commonwealth acting as a model litigant need not and, it may be expected, would not raise it. In the terms used in relation to statutes of limitations, section 494AB potentially bars the remedy, not the right.”

The Department of Home Affairs said it was aware of the judgement and considering the court’s reasons.

“The department is aware that there are other ongoing litigation matters that may be affected by the judgment. It would not be appropriate to comment on any ongoing matters that are currently before the court,” a spokeswoman said.

The High Court found each party should pay their own costs.