I Was Held In a Detention Centre, Can I Sue?

TGB’s Mal Byrne says some asylum seekers detained and injured in Woomera and/or Baxter Detention Centres between 1999 and 2005 may be entitled to compensation.

Between 1999 and 2005 the Federal Government opened detention centres in Curtin, Port Hedland, Woomera and Baxter to cope with the increasing flow of asylum seekers from Iran in particular.  With the advent of September 11, the government’s attitude to asylum seekers hardened.  Temporary Protection Visas were introduced and the government’s policy was to actively discourage asylum seekers from coming to Australia including pressuring asylum seekers who arrived in Australia to return home by detaining them in harsh conditions in detention centres in outback Australia.  Some detainees spent up to six or seven years in these centres and they have suffered physical and psychiatric injury as a result.  Detainees who were detained in centres in South Australia (Woomera and Baxter) during this period and who suffered physical and particularly psychiatric injury may be able to claim against the Commonwealth of Australia and the detention centre operators for failing to provide adequate care.

The Courts have held that the Commonwealth has a duty of care to properly care for asylum seekers in detention.

The relevant causes of actions are as follows:

1. Negligence

As the Commonwealth and the detention centre operators had a duty of care to provide proper care for asylum seekers in detention, an asylum seeker who was injured as a result of any failure of care may be able to take legal action against the Commonwealth and/or the detention centre operators.  The conditions in the detention centres during that period were crude and designed to encourage asylum seekers to return to their country of origin and to take away any hope that they might get to reside in Australia.  Due to the isolation of the facilities, limited support services were available to provide medical and dental care.  There was virtually no specialist medical care.  Inevitably, the longer detainees stayed in detention, the more they lost hope of ever getting out and depression ensued.  In my view, a failure of care often occurred at this point because severely depressed detainees who were self-harming and even attempting suicide were neither referred to a specialist psychiatrist for ongoing assessment or care nor detained in psychiatric facilities in public hospitals.  The nearest psychiatric facility to Woomera and Baxter was the Glenside Hospital.  Detainees were not provided with proper care when their psychiatric illnesses emerged and those conditions became worse and entrenched as a result.  Self-harming detainees would be placed in the Management Unit or solitary cells and monitored, but not provided psychiatric care.  Isolated and severely depressed detainees in the Management Unit inevitably had their depression aggravated by the additional confinement.

Another failure of care was the manner in which the Management Units were used to discipline detainees. Detainees would be placed in the Management Unit unfairly and frustration would follow which would then develop into psychiatric illness.  I have been instructed by some detainees that say they would become so frustrated, angry and isolated that they would begin to “hear voices” in the Management Unit.

In addition to individual failures of care or a series of failures of care, it is also arguable that the actual system was toxic and a failure of care in and of itself.  Over time, as health providers began to gain access to detention centres, it became clear that long term detention in and of itself was harmful to the psychological health of detainees.  As a result, when the opinions of those experts were made public, it is arguable that the Commonwealth knew or ought to have known from that point that long term detention was harmful and that any failure to address the needs of detainees to prevent them from getting ill from that point was a breach of the Commonwealth’s duty of care.

2. Intentional Torts

As detainees became increasingly frustrated, they would protest against conditions.  The protest would usually take a non-violent form such as hunger strikes, but in Baxter in particular, there were fires and riots.  Detention staff reacted to the fires by placing many detainees in the Management Unit.  On some occasions, it is alleged that detainees were beaten by detention staff.  Assault and battery are intentional torts and detaining someone unjustly in isolation in the Management Unit in Baxter is false imprisonment.

Detention claims are complex and difficult, but a handful of detainees have already settled claims with the Commonwealth and the detention centre providers and their insurers.  One of the complexities of the claims is that many detainees initially were detained in the Curtin Detention Centre before being transferred to Baxter.  Due to the strict limitation of action laws in Western Australia, it is not possible in our view to make claims for damage that occurred in Curtin or Port Hedland.  If you have been detained in both WA and Baxter centres, the focus will be on failures of care that took place in Baxter and damage that you suffered as a result of what occurred while you were in Baxter.  Claims do have to be lodged within three years in South Australia, but the law allows for an extension of time in certain circumstances.

Hence, if you were detained in South Australian detention centres during this time, and you have suffered long term psychiatric injury, please contact us to obtain advice.  The psychiatric injury that detainees have suffered in detention is long term.  Baxter was closed in 2007, but many detainees are still wracked with depression to the point that they cannot work, cannot leave their homes and have no social life.  Others have managed to work, but work ridiculously long hours as work is the only place where they can cast aside the memories of what happened to them in detention.  In addition to psychiatric injuries, some detainees have suffered long term physical problems as a result of illnesses that emerged during detention that were not treated or through assaults.  It is a terrible legacy and particularly for people who were doing nothing unlawful.  Compensation for victims is one way of addressing the injustice.

Tindall Gask Bentley is a leading Australian personal injury law firm, representing several former detainees with compensation claims against the Commonwealth. Contact Mal at TGB’s Adelaide or Salisbury offices or register online here.