Compensation, Torts and Immigration Detention Conference

Friday, 30 March 2007
Monash University Law Chambers, 472 Bourke Street, Melbourne


Session 1: 9.00 am - 10.30 am

Ms Rebecca Gilsenan, Principal, Maurice Blackburn Cashman, Sydney
'Multifactor causation in psychiatric injury claims for immigration detainees'

Abstract:Immigration detainees with psychiatric injuries have usually experienced a number of traumatic events that may have caused or contributed to their psychiatric injury. Some of these potential causes or contributors are non-justiciable matters and the task of trying to disentangle the causes and contributions is complex; both from a psychiatric perspective and from an evidentiary perspective. This paper will examine how the law of causation applies to claims in negligence by immigration detainees for psychiatric injury where there are multiple causative factors. 

Biographical note:Rebecca Gilsenan is a principal of Maurice Blackburn Cashman in the Major Projects department of the Sydney office and has completed a Bachelor of Laws and Bachelor of Social Work at the University of New South Wales. Rebecca’s specialty is class actions and includes product liability, investor, shareholder and competition class actions. Rebecca acted in the Badraie case against the Commonwealth and the former detention centre operators. The Badraie case was a landmark, long-running compensation claim by child refugee, Shayan Badraie, who suffered from psychiatric injuries as a consequence of his detention.

Mr Guy Coffey, Clinical Psychologist, Victorian Foundation for Survivors of Torture
'Tort liability and psychiatric injury sustained during immigration detention: issues in establishing causation'

Abstract:In a civil action involving psychiatric injury, the plaintiff must establish that the injury was caused by the defendant's conduct and expert opinion is relied on with respect to causation. The expert's scientific account of causation must satisfy the legal requirements of causation if the plaintiff is to succeed. Typically psychiatric disorders are explained in terms of predisposing, precipitating and maintaining causes, where the contribution of each varies from slight to predominant, and where multi-causal explanations are the norm. Providing causal explanations of psychiatric disorders arising in persons in immigration detention poses a range of challenges. Among detained asylum seekers, many have experienced multiple pre-migration traumas which may predispose them to developing psychological difficulties. In immigration detention, the effects of exposure to discrete traumatic events (violence, riots) and ongoing stressors (the deprivation of liberty associated with detention itself, the uncertainties of refugee determination) are difficult to separate.Moreover, to date it has not been possible to conduct the kinds of studies which would assist in precisely establishing the aetiological significance of these experiences. This paper will discuss what it is possible to say about the development of psychiatric disorders among immigration detainees and how this relates to the kinds of claims an ex-detainee plaintiff might make in a negligence action.  

Biographical note :Guy Coffey is a clinical psychologist who has worked in public mental health settings for nearly twenty years. During this period his areas of specialization have included the treatment of trauma in refugee and veteran populations. Guy has assessed asylum seekers in immigration detention for the past nine years and regularly assists in the provision of evidence for protection visa claims. Guy’s current role is as the Direct Service Coordinator of the Victorian Foundation for Survivors of Torture. He is also employed as a sessional psychologist in the PTSD unit, Veterans Psychiatry, the Austin and Repatriation Medical Centre. 

Session 2: 11.00 am - 12.30 pm

Ms Tania Penovic, Faculty of Law, Monash University
'False Imprisonment as a surrogate claim for promoting personal liberty'

Abstract:Within the common law, the tort of false imprisonment has distinguished itself by its congruence with a specific human right. In attaching itself to the right to personal liberty, false imprisonment may be described as a “surrogate” human rights claim which promotes the most elementary and fundamental of all common law rights. Yet actions in false imprisonment are seldom issued and rarely successful.Unlike negligence, false imprisonment is actionable per se, with the consequence that a plaintiff does not have to suffer loss as a consequence of their imprisonment. Furthermore, the threshold requirements of total and direct restraint are relatively easy to establish in the context of immigration detention. Difficulties arise, however, in establishing that detention is wrongful. This paper will examine the parameters of lawful justification under the provisions of the Migration Act 1958 (Cth) and consider why a tort, which comes so close to capturing the essence of the right enshrined in article 9 of the International Covenant on Civil and Political Rights is often characterised as anachronistic and of little utility in the promotion of human rights.  

Biographical note :Tania Penovic, BA, LL.B (Hons) (Melbourne), Master of Studies in International Human Rights Law (Dist) (Oxon), is a Lecturer in the Faculty of Law at Monash University and a member of the Castan Centre for Human Rights Law. She has acted as a legal adviser to asylum seekers in Australia and the United Kingdom. Her articles have been published in a range of law journals and she has contributed to parliamentary inquiries concerned with the processing of asylum seekers. Tania has taught undergraduate and postgraduate students at Monash University and has taught refugee rights to Indonesian government officials. Her primary areas of teaching are human rights law, civil practice and the law of torts.

Ms Azadeh Dastyari, Faculty of Law, Monash University
'Tort liability and the Pacific Solution'

Abstract:There is much evidence liking immigration detention with deterioration in the mental health of asylum seekers. The adverse impact of immigration detention on mental health has been exacerbated in Australia by the geographic remoteness of immigration detention facilities. This is particularly true of detention centres in “third countries” such as Nauru. An increasing number of asylum seekers are resorting to the tort of negligence to claim compensation for mental and physical harm suffered in immigration detention. Recent cases involving former detainees before the courts suggest that the Australian government does have a duty of care for people in immigration detention and the duty owed by the commonwealth is  “non delegable”. This paper will address the psychological health concerns of asylum seekers interdicted by Australia as part of the so called “Pacific Solution”. It will examine the avenues of redress available to detainees who suffered deterioration in their mental health whilst in a third country processing centre in Nauru.

Biographical note:Azadeh Dastyari BA, LLB (Hons)(Syd)Dip PDLP (UTS) is an Assistant Lecturer at Monash University and a member of the Castan Centre for Human Rights Law. Azadeh is the co-author of Future Seekers II: Refugees and Irregular Migration in Australia (with Mary Crock and Ben Saul) and has written widely on refugee law in Australia. Azadeh has worked closely with various NGOs since 1999, including in a voluntary capacity the Asylum Seekers’ Resource Centre, Amnesty International, the Public Interest Advocacy Centre and the Refugee Advocacy and Casework Service.

Session 3: 1.30 pm - 3.00 pm

Mr Hugh de Kretser, Executive Officer, Federation of Community Legal Centres (Vic)
'Prison litigation: Barriers to justice and how to overcome them'

Abstract:Cover ups; victimisation of complainants; an often uncaring and hostile public; unsympathetic judges who defer to prison administrators; the absence of political will, poor accountability and monitoring, problems with client access, trust and credibility -- these are some of the key barriers to justice in prison litigation.Using case studies and an analysis of Australian jurisprudence, this paper will discuss these barriers and outline strategies to overcome them. Case studies will include assault/negligence litigation in a private prison context and coronial inquests into deaths in custody. The paper will also briefly canvass a proposal to establish a specialist community legal centre in Victoria to focus on the treatment of prisoners and detainees.

Biographical note:Hugh de Kretser is the Executive Officer of the Federation of Community Legal Centres (Vic), the peak body for Victoria’s 51 community legal centres. He was a founding board member of the Human Rights Law Resource Centre and previously worked at the Brimbank Melton Community Legal Centre and Mallesons Stephen Jaques.  He has worked on a range of prison cases and law reform issues including assaults by prison officers, deaths in custody, use of “solitary confinement”, prisoners and the right to vote, legal professional privilege, freedom of information and prison disciplinary processes.

Ms Claire O'Connor, Barrister, Anthony Mason Chambers, Adelaide
'Mental health and Immigration Detainees'

Abstract:In 2004 the High Court of Australia delivered two significant decisions in relation to persons detained in the immigration detention centres throughout Australia. The first of these decisions, Al Kateb v Goodwin and Ors,[1] held that it was not a bar to detention of a non-citizen that the person might spend the rest of their life in immigration detention because they were stateless. This decision determined that the Commonwealth had power to hold non-citizens in immigration detention indefinitely.Al Kateb was a stateless Palestinian who did not qualify for the right to reside in Gaza and was not able to get citizenship in any other country. He had been in immigration detention for some years and had sought to be removed from Australia in 2002. The Minister had not been able to find a country willing to take him and he remained in Baxter Immigration and Processing Centre until the Federal Court released him pending the outcome of the High Court decision.The second judgment of the High Court of significance, which had been argued at the same time as Al Kateb, is the decision of Behrooz v Secretary of the Department of Immigration and Multicultural and Indigenous Affairs. [2] Behrooz determined that conditions in immigration detention centres do not make the detention unlawful regardless of what those conditions are.  Mehran Behrooz had escaped from Woomera Immigration and Processing Centre in 2001. He had wanted to raise the conditions in Woomera at his trial for escape arguing that he was entitled to escape from conditions that went beyond the scope of the executive power to detain for the purpose of removal or processing and were therefore punishment and unlawful.  The Court held that conditions of detention, even if arguably harsh and inhumane, did not render the detention unlawful.The High Court however did say that harsh conditions of immigration detention may give rise to an action in tort for damages.Immigration detention conditions in centres in Australia have been criticized by a number of national and international bodies. Those conditions are now becoming the focus of legal action where, in particular, the mental health of a former detainee has been compromised by the conditions.This paper will examine the legal response to mental illness caused by, or not treated by immigration detention. It will discuss the Palmer Report which reported on the unlawful detention of Cornelia Rau, the Comrie Report which reported on the unlawful removal of Vivian Alvarez Solon, and the courts approaches to claims in tort for harm caused or contributed to by the failure to adequately treat the mental illness of detainees.As the Federal Court in S v Secretary, Department of Immigration & Multicultural & Indigenous Affairs[3] said where there was a claim in tort against the Commonwealth for failing to treat the mental illness of two detainees from Baxter, “These two applications are the predictable consequence of the decisions of the High Court” (in Al Kateb and Behrooz).

[1] (2004) 208 ALR 124
[2] (2004) 208 ALR 271
[3](2005) 216 ALR 252

Biographical note: Claire O’Connor is one of Australia’s pre-eminent lawyers in the human rights, immigration and refugee law areas. In 2004 Claire appeared in the High Court for the applicant in the constitutional case of Al Kateb v Goodwin and Ors and in 2005 took a successful claim against the Commonwealth for breach of duty of care for immigration detainees suffering from mental illnesses in S v Secretary, Department of Immigration Multicultural and Indigenous Affairs . She also wrote submissions to the Palmer Inquiry into the Wrongful Detention of Cornelia on behalf of Ms Rau. Claire previously represented Aboriginal women before the Royal Commission into the Hindmarsh Island Bridge in 1995 and assisted in the establishment of the Women’s Legal Service in South Australia. In 2005 Claire received the South Australia Law Society Award for Services to the Profession and received the Society’s Award for Human Rights the following year.