The treatment of refugees in Australia is clearly not only a legal issue, but also a moral one, which has challenged the collective Australian psyche over the past decade. Whether it is the former Labor government's 2011 'Malaysia Solution' or the current Coalition government's mantra of 'Stop the boats', how we treat refugees and asylum seekers has become a key focus of Australian politics, election promises and, ultimately, law. While the battle between law and morality is fought out in the political arena, individuals in immigration detention continue to suffer physical and psychological injuries, sometimes with devastating and long-lasting effects. Some of these cases potentially involve breaches of common law rights that, if pursued, could result in significant awards of damages.
DETENTION – IS IT LAWFUL?
Under s198A of the Migration Act 1958 (Cth) (Migration Act), if an individual enters Australia's jurisdiction claiming asylum they may not be removed from Australia for the purposes of having their refugee status assessed unless the country to which they are being removed to meets the criteria set out in s198A(3). This section essentially creates the power to detain and/or assess asylum seekers in Australia's various detention facilities or a place designated as an offshore processing country. Under s189 of the Migration Act, 'if an officer knows or reasonably suspects that a person in the migration zone (other than an excised off-shore place) is an unlawful non-citizen, the officer must detain the person' until such time as a visa is granted or they are removed from Australia and returned to their country of origin.1
However, 'if an officer knows or reasonably suspects that a person in an excised off-shore place [such as Christmas Island] is an unlawful non-citizen, the officer may detain the person'.2 There is no provision governing the length of time that an asylum seeker may be detained. In fact, in Al Kateb v Godwin,3 the full Federal Court confirmed that indefinite mandatory detention of asylum seekers is within the scope of the Act.
On face value, it is clear that mandatory detention of asylum seekers is not enough to amount to unlawful detention. However, a number of administrative provisions must take effect before one can be detained. Sections 194 and 195 of the Migration Act provide for a reasonable period of time to be given to any asylum seeker to apply for an appropriate visa, such as a bridging visa or a protection visa.
In the case of Sales v Minister for Immigration and Multicultural Affairs,4 the plaintiff was found to have been falsely imprisoned, with the Federal Court finding that 14 days' notice was not enough time to afford procedural fairness in the circumstances. However, the full bench of the Federal Court has since confined the application of ss194 and 195, suggesting that false imprisonment occurs only if detained during the reasonable notice period, and for its duration only.5
As a consequence, in the case of Fernando v the Commonwealth,6 when it was remitted to the primary judge for reconsideration of damages, nominal damages were awarded in the sum of $1 on the basis that the plaintiff would have inevitably been lawfully detained. The plaintiff in that case was awarded $25,000 for exemplary damages, having been denied procedural fairness. In these circumstances, while there is some scope to bring a cause of action arising from unlawful detention, it is unlikely to yield any significant damages, except in exceptional circumstances.
However, most individuals who travel to Australia seeking asylum or protection are likely to be immediately detained and held in one of Australia's detention facilities.
It is asylum seekers' experiences while in these facilities that potentially gives rise to a breach of a non-delegable duty of care on the part of the Commonwealth.
DOES THE COMMONWEALTH HAVE A DUTY OF CARE?
While there is a plethora of case law that involves the Commonwealth of Australia and a duty of care generally, it is quite a unique duty which is established when the dictates of policy allow for the indefinite detention of any individual while their visa status is being processed.
The common law duty of care towards people held in a detention like environment is grounded largely in the case of Howard v Jervis  HCA 19 – Mr Jervis was arrested and detained in a cell at a police station when there was a fire and he died in his cell. Despite Mr Jervis being detained lawfully and properly, the High Court established that by depriving an individual of his liberty, an assumption of control of that person is created, resulting in a duty to exercise reasonable care for the safety of that person, required by law.
This decision was ultimately upheld in the case of Price v State of New South Wales  NSWCCA 341, where the plaintiff was also detained in a prison by the state, with the court clearly stating:
At the outset, these cases clearly establish a duty on the part of any detaining body or government to take reasonable care for the safety of the person detained, including the Commonwealth when it imprisons people in immigration detention. These cases also establish a duty on the detaining bodies to exercise powers of control and provide access to amenities, such as medical treatment, in a manner as to avoid injury. In Behrooz v Secretary, Department of Immigration and Multicultural and Indigenous Affairs & Ors, the High Court made clear that:
However, the Court also noted that while a detainee may face extreme difficulties during detention, that exposure alone does not give rise to a cause of action suggesting unlawful detention.9
For cases involving negligence, or the failure to provide adequate medical care or treatment, it is therefore necessary to undertake a detailed analysis of what was required by each individual detainee and consider whether provision to prevent, control or treat any arising physical or psychological condition, whether it was pre-existing or arising directly out of detention, was adequate. In this regard, the Commonwealth has had to take reasonable steps to provide or procure the provision of relevant health services. in MZYYR v Secretary, Department of Immigration and Citizenship & Anor, the Federal Court of Australia identified that: