Government stalling on Howard refugee compo
The federal government is holding up a bid to compensate more than 60 people who allegedly suffered psychological trauma in immigration detention during the Howard years, stalling one lead case just as it was about to go to trial.
The asylum seekers in question came to Australia before the Howard government installed its Pacific Solution and were held in either the Baxter or Woomera detention centres in South Australia.
For now, their hopes rest largely on the case of one man, Payam Saadat, whose boat from Indonesia was intercepted on Ashmore Reef, off the northern coast of Western Australia, on December 22, 2000. After converting to Zoroastrianism, Saadat fled Iran fearing persecution, a claim to refugee status that later would be accepted.
Saadat was held in mainland detention centres for five years – first in Curtin in Western Australia, then in Baxter. In both centres, he claims, he suffered dehumanising treatment. He says he was denied psychiatric support for some time, was randomly strip-searched and was subjected to “the indignity of being called by number instead of name”.
As a result, he has been diagnosed with an adjustment disorder as well as chronic, ongoing depression.
As a lead case, Saadat’s success would mean likely and significant compensation for the 62 other former detainees with similar claims. Particularly, it would confirm that the severe mental health issues they now face can be traced to their time in Baxter and Woomera and the conditions they experienced while detained.
It has been about eight years since Saadat’s legal claim was first filed with the District Court of South Australia and more than 10 years since he first wrote to the Commonwealth announcing his desire to be compensated for suffering. He may well mark two decades since he was first taken into Australian immigration detention without his case coming to trial.
Proceedings have slowed to a crawl.
Most recently, the government has sought leave to appeal in the High Court of Australia against pre-trial directions made by the Supreme Court of South Australia, which allowed Saadat’s legal team to provide more detail about his alleged treatment inside Baxter. The decision also granted an adjournment because the former detainee’s team had been “overwhelmed” by documents from the Commonwealth.
The principal solicitor at the National Justice Project, George Newhouse, who is currently fighting a case for children and adults who were harmed during detention on Nauru, told The Saturday Paper the Saadat matter is an example of the government doing everything it can to extinguish hope for refugees.
“This is evidence of a government that wants to crush vulnerable individuals who are simply trying to exercise their legal rights,” he says.
“There is a principle that the Commonwealth should act as model litigants. This kind of behaviour flies in the face of that principle.”
In his case, representing more than 60 children and adults held on Nauru, Newhouse says the government has also sought leave to appeal earlier decisions in the High Court of Australia.
“The Australian government are taking every possible point they can,” he says.
During his three years in Baxter, Payam Saadat claims, he was under intense stress – witnessing others being deported to their homelands or being taunted about deportation, and on multiple occasions being held in isolation and in the centre’s notorious “management unit” for alleged misbehaviour.
In 2002, three months after he arrived, he was accused of being involved when detainees set the centre alight.
Saadat also alleges he was detained in the management unit for being honest about thoughts of suicide and self-harm, and for telling nurses he was mentally well, in an attempt to avoid returning to the management unit. He witnessed security personnel strike other detainees and was himself beaten, his claim states. He overdosed on prescription medication twice in 2003, for which he received treatment. He was also present at Baxter during riots and suffered smoke inhalation during another fire.
In its defence, the Commonwealth claims the government “neither knew nor ought to have known that the plaintiff was suffering a psychiatric illness and/or was a person of less than normal fortitude when he arrived at Baxter”.
In 2018, six years after Saadat first filed his claim in South Australia’s District Court, there was a breakdown in his legal representation. According to the South Australian Supreme Court, the “failure to earlier foresee serious deficiencies in the statement of claim … would have excluded evidence on which Mr Saadat’s case critically depended”.
About the same time, Saadat – who is now an Australian citizen – and his legal team were deluged by continuing disclosures from the Commonwealth. Boxes and boxes of documents, reports and records were made available and a further two USB drives jammed with information turned over.
Saadat’s new counsel, Hugh Abbott, SC, told the SA Supreme Court his team could not deal with the volume of documents. “We’re just unprepared and will not be able to prepare for trial,” he said. The trial had been set for February 2019.
Abbott’s team asked for an adjournment, but Justice Tim Stanley found one would add to the significant stress already heaped on Payam Saadat.
The court did, however, grant him the right to refile his statement of claim, which outlined the impact detention had had on his mental health.
This marked a serious blow to the government’s prospects of defeating his claim. Now, facing a strengthened case, it has slammed on the brakes.
Any victory for Saadat would have significant implications for the 62 other former detainees waiting in the wings. Despite earlier admissions from the Australian government solicitor that this case would serve as guidance for the rest of the cohort, the Commonwealth has now tried to back-pedal on that claim, a move that was also derided by the court.
Government solicitors argued forcefully for Saadat to be held to the earlier statement of claim, which would be easily defeated.
In its appeal to the full court in South Australia, the government also argued the “human strain of litigation” in granting an adjournment to the case would be no greater on Payam Saadat than it would for any of the other parties – including Commonwealth officials and the outsourced security companies Australian Correctional Management and Global Solutions Limited.
“The Commonwealth’s submission has an air of unreality,” the court found. “The most elementary understanding of human affairs is more than enough to support a finding that a natural person will feel greater strain in protracted litigation than a corporation, which, of course, can feel none.”
Chief Justice of the Supreme Court of South Australia Chris Kourakis agreed with the earlier findings that Saadat’s amended statement of claim did not introduce new argument but only furnished additional particulars to the existing statement of claim. This was a crucial victory for Saadat, as it allowed his case to be argued more thoroughly. Had the judge accepted the Commonwealth’s argument, the matter would have proceeded to trial and the government would almost certainly have won.
Justice Kourakis went further, adding: “If the permission and adjournment were not granted, Mr Saadat would suffer the substantial prejudice of the dismissal of his otherwise reasonably arguable claim for serious personal injury because of the default of his legal practitioners.”
While the legal tactics played out in court, the toll of detention has started to affect some of the others who were held in Woomera and Baxter.
Mal Byrne recalls the death of Aref, one of the 62 asylum seekers waiting for the resolution of Saadat’s case. Byrne had been Aref’s lawyer. “He died alone in his unit tucked away in the leafy eastern suburbs of Adelaide.”
In the final seven months of his life, Aref had no electricity. Few people had seen him. As Byrne wrote for Adelaide’s InDaily in February 2018, he had “given up on life”.
“It was several days before his body was found. He died of natural causes – a heart attack or stroke,” Byrne wrote. Aref was 47 years old.
The former detainee was one of the many clients represented by Tindall Gask Bentley, a law firm of which Byrne is a partner. And he is not the only one who has died waiting for answers – another refugee, aged 70, passed away this month.
The most curious thing about Saadat’s case is that while it has stretched for almost a decade, many other refugees around the country have been compensated for trauma.
In 2017, the federal government settled a class action lawsuit representing more than 1900 asylum seekers held on Manus Island between 2012 and 2016, ending the matter with a $70 million payment before it went to trial.
By contrast, mediation of the cases for those locked up in South Australia has been almost non-existent.
Some matters were due to go voluntarily to negotiations with the Commonwealth in August 2013. These were abandoned when the general election was held weeks later in September and won by the Coalition. With a new government, the Commonwealth appeared to change tack. There would be no more mediation unless it was ordered by the courts. For years, the courts have been reluctant to do so.
There may be a breakthrough this year. Two cases are due to go to mediation with the Commonwealth in April, although there are no guarantees with that process.
In the matter of Saadat, the federal government was most concerned that a fifth statement of claim was allowed by the trial judge. They argued it amounted to a “wholesale” change to the case, which would affect their ability to defend the matter, and complained Judge Stanley did not do a “comparative analysis” of the fourth and fifth statements to back his decision.
This was rebuked by the full court on appeal. “It is not an error of law to refrain from undertaking a tedious exercise advocated by the Commonwealth if the material changes are addressed,” the judgement says.
“The proposed fifth statement of claim did not make any new claim. The many skirmishes over pleadings in the preceding years, and their piecemeal development to meet particular objections may have clouded the perspective of those involved.”
Human rights and refugee advocate Julian Burnside, QC, told The Saturday Paper the High Court appeal would most likely fail.
“It is hard to resist the idea that the Commonwealth wants to avoid an examination of conditions in Baxter,” he says.
“I [went there] and it was high-tech horror: arguably the most dehumanising place I have ever been. Even though it is no longer in use, as far as I know, it is not surprising that the Commonwealth wants to avoid a close examination of the place which was designed, built and run by the government of John Howard.”
Mal Byrne attended the funeral of his former client Aref.
“It was a small funeral. It was immensely sad,” he writes.
“It was attended mostly by other Iranian men who had been detained with Aref and who had supported him and each other since their release. I was struck by the camaraderie of these men, bound together by their shared experience. They thought about him, but I could see in their faces that they were also thinking about which one of them would be next.”
It is now unlikely any resolution to their claims will be made within the next few years. By one lawyer’s estimation, not before 2025, at least.
This article was first published in the print edition of The Saturday Paper on Feb 15, 2020 as "Government stalling on Howard refugee compo". Subscribe here.