The Morrison government’s decision to reopen Christmas Island for the transfer of sick and mentally ill asylum seekers from Manus Island and Nauru will be an expensive one for Australian taxpayers.
The well documented lack of medical facilities on Christmas Island means that the Commonwealth, if it chooses to go through with transfers, will be breaching its legal duty of care to provide proper medical care to detainees. Australia has already, since the Howard government’s ramping-up of mandatory detention in 2001, paid out an estimated $250 million or more to compensate for past breaches of duty of care. This includes the $100 million in damages and costs in a major class action brought by Manus detainees.
Non-delegable care
When it comes to asylum seekers, the Commonwealth owes what is called a non-delegable duty of care. This means it cannot shift onto contractors its responsibility for the physical and mental care of those it detains. When it comes to healthcare the law is also clear. A widely cited 2005 Federal Court decision involving Baxter detention centre in South Australia found that the Commonwealth has to ensure healthcare services are reasonably designed to meet the healthcare needs of detainees, and that reasonable care and skill is required in the delivery of healthcare services.
Given the clear obligation of the Commonwealth, it is extraordinary that it would deliberately choose a location for healthcare provision that is inherently inadequate at every level.
As mayor of Christmas Island Gordon Thomas said this week, there are only six beds at the island’s hospital and people frequently need to be medivaced to Perth for treatment.
“Women cannot give birth on Christmas Island, all childbirth occurs in Perth. There’s no surgery. The operating theatre was closed many years ago with some compliance issues,” Thomas said.
He added that psychiatric services were also provided in Perth.
Mounting costs
Not only is it highly likely that, under such circumstances, the government would fail to meet its duty of care obligations, the deliberate choice of Christmas Island could also lead courts to award what are called punitive or aggravated damages against the Commonwealth.
These are damages awarded in cases where the wrongdoer has behaved contemptuously or deliberately sought to harm the claimant. It would be an easy argument to mount that the Morrison government has sought to inflict further harm by choosing a venue for medical care that is known to be utterly unsuited for this purpose.
In addition, taxpayers can expect vast sums to be spent on Commonwealth lawyers defending challenges to the decision. On a number of occasions courts have said the Commonwealth’s duty of care towards asylum seekers includes transferring them to Australia to receive adequate healthcare. Challenges, then, would not be difficult. If the plan goes ahead, we can expect many urgent cases being filed in the Federal Court by lawyers acting for desperately ill asylum seekers who are not getting adequate care on Christmas Island.
The contempt shown by Australian governments when it comes to asylum seekers makes you wonder what moral authority politicians have to fulminate about the need for obedience to the law of the land.
Greg Barns is a barrister and a spokesman for the Australian Lawyers Alliance
Great article Greg – is there no way the courts can go after politicians directly for driving cruelty to refugees and purposely wasting taxpayers money?
Perhaps the opening of Christmas Island is nothing to do with medical transfers but is designed to provide facilities for the new boat arrivals which will now – surprise – occur as a ‘result’ of the recently passed legislation? I am running a sweep with friends to predict when Operational Sovereign Borders will be ordered to fail by Morrison and Dutton. I have picked April 5 given that the April 2 [such a pity not April 1] Budget will likely be widely perceived as a pork flavoured failure and an ‘arrival’ on April 5 would be nicely timed for Saturday papers, The Insiders, and announcement of election. That is of course unless Morrison decides to split the elections and goes for a half Senate election in May. Could he believe that ‘waiting’ and hopin” for a November House of Representative election is ‘a cunning plan’. Not sure we can wait that long to have our say Scott; we’ve been due one since August.
The surplus may have gone out the window with coal being stopped going into China, but Morrison won’t call an election sooner than he has to because he can’t bear to lose (even his salary).
The Christmas Island ‘mayor’ is Gordon Thompson.
Scientists should study the Island Camps. They’ve become Black Holes on earth. They suck in struggling people, good policy making, humanitarian ideals, good governance and money and nothing comes out…well, actually, that’s not quite correct. The money certainly disappears, but the other items can occasionally be spat back out, but for some it’s very occasionally.
It’s woeful that Shorten & Co appear to be going along with Christmas Island as a medevac alternative. The optimist in me suggests that it’s a short term strategy &, should Labor win the federal election, this nonsense will be overturned ASAP.
There are other pressing issues which are being overshadowed by the medevac policy ie: climate change, banks’ culpability, national integrity commission, Royal Commission into abuse of the disabled, ABC cuts et al. Plenty issues here with which to hammer the Coalition. The Coalition loves to talk about refugees, perhaps it’s best that Shorten lies low on the subject in the interim.
Shorten did not fall for the hysteria from the extreme ends of the debate
He made it very clear Christmas Island was only acceptable if it was set up to provide an sppropriate level of care
The hard right have been snookered as have those on the hard left who may have seen the Medivac legislation as a backdoor way of ending off shore processing of boat arrivals
On shore processing of boat arrivals is a pull factor. No sensible person can accept the insouciant attitude of Sarah ‘Accidents Happen’ Hanson-Young to the dire risk of encouraging the criminals to resume their deadly trade.
Getting your scripts from Menzies House these days?
Are you Hanson-Young’s handbag? Maybe you can explain/justify her comment?