Peter Dutton au pairs
Peter Dutton (Image: AAP/Lukas Coch)

Lawyers and refugee advocates are hailing a recent High Court decision as a victory for asylum seekers after it unanimously held that the Federal Court could hear negligence claims brought by people in offshore detention.

The decision could expose the government to a string of expensive lawsuits and make it easier to evacuate sick refugees to Australia for treatment.

“This case represents a win for asylum seekers,” Australian Lawyers Alliance human rights spokesman Greg Barns SC told Crikey.

The Federal Court can now hear claims for negligence made by 52 asylum seekers and refugees in offshore detention.

The decision turned on the proper meaning of various sections of the Migration Act 1958. Lawyers for the government argued they should be interpreted as meaning only the High Court could hear cases brought by people in offshore detention.

While the court technically allowed the government’s appeal against a Federal Court ruling last year, it held that the relevant section of the Act did not stop the Federal Court hearing proceedings.

“In essence, the Minister for Home Affairs [Peter Dutton] was trying to knock out claims for damages made by asylum seekers altogether,” Barns said.

“[But] the High Court has reminded the Commonwealth that it has to behave as a model litigant, which means that it should not use defences and legislation to prevent cases which have obvious merit from being heard.”

A ruling in Dutton’s favour would have struck at a key strategy used to bring sick asylum seekers to Australia for treatment: lawyers would file a negligence claim followed by an urgent injunction to seek medical care on the mainland.

If those claims were limited to the High Court, it would be far more difficult and expensive to make them. But the judgment rejected that reading of the act, with the High Court saying it would not be “made a postbox for the commencement of proceedings destined to be remitted to another court”.

George Newhouse, principal solicitor and director of the National Justice Project which is acting for the asylum seekers, says the High Court’s decision was a vindication of its clients.

“We’ve argued successfully at every stage that the Federal Court has the jurisdiction to hear these claims,” he said.

“Today the High Court agreed. In an act of legal bastardry, the government tried to slow down the course of justice, and they failed.”