The wrong kind of settlement
Majid Kamasaee v the Commonwealth of Australia would have been an enormous trial – a class action representing almost 2000 plaintiffs, reflecting 200,000 documents, comprising 70 witnesses and estimated to run for at least half a year. Despite the Australian government’s objection, the trial would also have been broadcast live online – a landmark decision justified, Justice Michael McDonald said, by the public interest and the fact that the majority of plaintiffs, courtesy of their detention, could not be present.
It had been a long time coming. On December 19, 2014, legal firm Slater and Gordon filed the writ in the Supreme Court of Victoria on behalf of its client, Majid Kamasaee, accusing the Commonwealth of negligence. In 2016, it would add “unlawful imprisonment” to the class action, after the Supreme Court of Papua New Guinea ruled the detention of men on Manus Island was illegal.
Kamasaee, 32 years old when the class action was first declared, had fled Iran the year before, and, like so many detainees on Manus, made his way to Indonesia before finding passage to Australia on a fraught boat. In August 2013, Australian authorities intercepted his vessel and Kamasaee was taken into custody. After being kept in Darwin for two weeks, he was transferred to Manus Regional Processing Centre where he was detained for 11 months until his transfer, on medical grounds, to Melbourne’s Maribyrnong Immigration Detention Centre.
As a teenager, Kamasaee had been horrifically burnt in a house fire. Photos show extensive scarring to his face, neck, torso and hands. He almost lost his right ear. According to court documents, Kamasaee’s injuries have required more than 30 operations over the years. His lawyers alleged that Kamasaee’s skin condition was not properly managed in detention, that, in fact “the Plaintiff’s longstanding burn injuries had regularly required the use of several medical skin creams to apply to the burns and surgical scarring on his face, neck and hands, prior to arriving at the Centre. The cream he required most often was called ‘Rejuderm’. Upon his detention by the Commonwealth and prior to his arrival at the Centre, his skin creams were confiscated … No adequate alternative creams were made available to the Plaintiff while at the Centre, during which time he had little or no means for relief from his skin irritation available to him.”
But the allegations of negligence made by Kamasaee’s lawyers, contained in a 163-page statement of claim, were numerous and not unique to their client. They alleged multiple breaches of duty of care – a centre that could not adequately secure its detainees, nor provide sufficient mental or physical treatment. “In a number of cases, Detainees who required escalation of medical treatment endured lengthy delays; inadequate interim care pending presentation to the alternative medical treatment providers; and refusal to escalate care by means of transferring the person off Manus Island to Port Moresby and/or to Australia.”
One notable allegation of negligence regards the 2014 riot, in which locals breached the perimeter and Iranian detainee Reza Barati was murdered. Kamasaee’s lawyers were prepared to argue in court that this fatal disturbance was “foreseeable” and amounted to a grave breach of duty.
Behrouz Boochani, an Iranian journalist detained on Manus for four years now, has developed a profile in this country with his regular posts on Facebook, and the recent Australian screening of a movie he secretly made of life in the camp. Behrouz tells me that he remembers Kamasaee as a man with “mental” issues, who was very self-conscious about his scarring.
“His face was burned and he was afraid for people to see his face and because of that he covered his face by a thing like a dark hat,” Boochani says. “I remember him when he was so sick and had some mental problem. The last day that he was going to leave Manus for Australia I saw him in the Green Zone. The Green Zone was a place for sick people. His face was covered by a dark cloth and only his eyes were clear.”
For Boochani, the compensation is insufficient. “They want to pay almost $35,000 to each person and this amount never can cover four years of suffering,” he writes to me. “Majority of refugees damaged physically and mentally seriously and this money is not even enough for the medical. We the refugees should wait until next weeks to get more details from the lawyers to make decision. If we accept the compensation the lawyers will become winner because [they] will get enough credit and get money more than the refugees. Also, the Australian government can prevent a court that will be against its reputation.
“The system has humiliated me for a long time. This system threatened me and put me in a harsh place with no safety for a long time. My body has been damaged and I have lost a lot of things in my life, and the other refugees are the same as me… Compensation can never bring justice for us.”
Behrouz tells me that many other men on Manus feel the same as he does, but that reaction to the settlement is not uniform. There are almost 2000 plaintiffs after all, and excited debates are being had between detainees about it. “People are happy that eventually they could see a bit of justice after four years,” he told me. “Some are saying that we don’t have to accept it and some of them are saying that we should take this money. There are a lot of different views about the matter.”
On Wednesday morning, the public part of these proceedings was over in just five minutes. Justice McDonald confirmed that the parties had reached a settlement – an outcome many suspected after the trial was repeatedly adjourned – and thanked the respective legal teams for “exemplary” behaviour. The settlement, a historically large one for a human rights claim, would now wait for court approval. And that was that. Once more, the Australian government had settled litigation brought against it as a result of offshore processing.
Despite the Greens’ assertion that the outcome was “an admission of guilt”, the settlement is not an admission of liability, a point stressed by Immigration Minister Peter Dutton, who said that the Commonwealth “strongly refutes and denies the claims made in these proceedings”. He later blamed Labor and “ambulance chasing” lawyers for the historic bill.
Many details of the settlement will remain private, but the prospective sum of compensation would be $70 million. The three defendants would also pay the legal costs, estimated at $20 million. How this cost is borne between the parties is unknown, but it is assumed by outside legal experts that the Australian government will bear it all.
The $70 million means that, on average, each plaintiff will receive about $35,000. However, compensation sums will be determined on an individual basis. Each plaintiff will be evaluated for their length of detention and the physical and psychological harm sustained as a result of it. Subsequently, the redress scheme will be complicated. Slater and Gordon have applied to administer it.
“It’s an important and long overdue concession that [the Australian government] has been mistreating people in its care,” said Daniel Webb, a director at the Human Rights Law Centre who has made three investigative trips to Manus. “But signing a cheque for the injustices of yesterday doesn’t help the injustices of tomorrow. These men need to get on with their lives. If settlement in PNG were safe and viable, it would have happened long ago. If being returned to their country of origin were safe and viable, then that would have happened long ago. I desperately hope that the US deal provides a pathway for some, but it won’t provide a pathway for all.”
The response was similar from Kate Schuetze, Amnesty International’s Pacific researcher. She, too, has visited Manus. “I acknowledge that this is an historic judgement, but it doesn’t end the ongoing injustices there,” she told me. “They’ve been unlawfully detained, and just two months ago they were shot at. There is serious trauma there. My background is in human rights and child protection, and I’ve never witnessed what I’ve seen on Manus before. So, the gross figure might seem a lot to the Australian public, but it’s not much on an individual level. Nor does the compensation end the injustice. Fundamental problems remain. I can’t second-guess those who wanted to settle, but the Australian government does not want these abuses aired.”
Plenty of lawyers and advocates saw it as a missed chance for the government’s policy to be rigorously tested in a court of law. Kamasaee, celebrating the settlement, said: “Our voices have never been listened to, but today we are finally being heard and I hope everyone’s suffering can be over as quickly as possible.”
Perhaps Kamasaee is talking about his lawyers listening to him, because the voices of the men on Manus – and all of the other witnesses – is precisely the thing the public will not hear. “Such a large number of plaintiffs will have some resolution that means something to them, and this is the largest human rights settlement in Australian legal history,” said Dr Sangeetha Pillai, the senior research associate at the Andrew and Renata Kaldor Centre for International Refugee Law, at the University of New South Wales. “But it’s a lost opportunity. There is so much secrecy regarding what happens there. And lawyers are coming forward and saying that in the past two years, there’s been over 80 claims for compensation and the majority have been settled. There is a trend towards settlement. I think the major implication from a legal point of view, but also a public interest point, is that the secrecy and uncertainty continue. There hasn’t been a comprehensive interrogation of the conditions, and who is responsible for what.
“One issue at the heart of this was the unlawful imprisonment of detainees, and the government’s defence is that, ‘We can’t be guilty of this because it is carried out by PNG.’ If this wasn’t settled, we would have had a ruling on that issue. That’s of public interest, but also the grounds for future plaintiffs. But now they’re left with the same murkiness as before. There’s no finding of liability, and it allows the same rhetorical defences of the policy.”
Historic as this week’s settlement is, none of it resolves the Manus limbo. Ruled illegal by the land’s highest court more than a year ago, the Manus camp is scheduled for demolition in October. This leaves a serious question about where to house the almost 900 men. The United States resettlement deal is ongoing – officers from the Department of Homeland Security have made multiple trips to the island – but the vetting of asylum seekers will not be complete by October, and nor will all men be eligible for resettlement, assuming, of course, that Donald Trump honours the deal.
What to do? Men will be moved to the East Lorengau Transit Centre, which currently accommodates 60 men and has a full capacity of 298. Three weeks ago, during a senate estimates hearing, the secretary of the Department of Immigration and Border Protection said the centre’s accommodation could be “quickly” increased to 440 – which is still only half that required to accommodate all the men currently detained on Manus. The whole policy remains an incredibly costly mess, the legacy, a former executive of the department tells me, of desperate and compromised planning. For now, the compensation resolves very little, either in law or in practice.
This article was first published in the print edition of The Saturday Paper on Jun 17, 2017 as "The wrong kind of settlement".
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