Tort proceedings as an accountability mechanism against decisions made by the Department of Immigration Immigration Law Conference, Sydney 24-25 February 2017 1. The focus of immigration law practitioners is usually on decisions made by the Department which affect visa or citizenship status. Redress for incorrect decision-making of this kind can sometimes be obtained through merits or judicial review. 2. However, the Department also detains people, and having detained the person, makes further decisions that adversely affect the dignity and physical and mental wellbeing of the person. There are limited ways to enforce accountability in relation to immigration detention, but one possibility is through bringing tort claims. 3. The focus of this paper is to provide some basic practical guidance to practitioners whose clients have been detained and are examining what can be done to help. The rest of this paper is divided into two sections. First, the paper will provide some brief comments about misfeasance in public office, false imprisonment, battery and negligence, being the four principal kinds of tort proceedings that may arise in relation to immigration detention. Second, the paper will focus on negligence and discuss some key practical issues involved in bringing such a claim. 4. This paper will not give any detailed examination of the ongoing legal debate about the scope of lawfulness of immigration detention. 1 Nor by any means is it a comprehensive how-to guide or detailed examination of the law in relation to negligence. However, it is hoped that the paper will provide some basic practical guidance for practitioners whose clients are or have been detained. 1 For now, indefinite immigration detention is lawful: Al-Kateb v Godwin (2004) 219 CLR 562. However, the correctness of Al-Kateb has been doubted: see eg Plaintiff M47/2012 v Director General of Security (2012) 251 CLR 1, [114]-[120] (Gummow J), [528]-[532] (Bell J); Plaintiff M76/2013 v Minister for Immigration, Multicultural Affairs and Citizenship (2013) 251 CLR 322, [189] (Kiefel and Keane JJ). See also Plaintiff M76/2013 v Minister for Immigration, Multicultural Affairs and Citizenship (2013) 251 CLR 322, [137] (Crennan, Bell and Gaegler JJ).
2 A. TORTS THEORETICALLY AVAILABLE The issues raised by the process of detention 5. The detention of a person can be thought to involve three distinct issues of law and practicality. 6. The first is the legal issue of whether a person s detention is lawful. The source of the Department s power to detain people is section 189 of the Migration Act 1958 (Cth), which is very broad. Some limits exist, 2 but in general, if a noncitizen does not have a visa, there will usually be a lawful basis for the Commonwealth to detain the person (the Commonwealth being the party that does, or is at least usually vicariously liable for, the detention). 7. Assuming the person s detention is lawful, the second issue is where a person is detained. 3 This can have significant practical implications for a practitioner representing a detained person. 8. The Commonwealth operates a wide network of immigration detention facilities. Many are in metropolitan areas where practitioner access may be possible, but many are also in extremely remote areas such as Christmas Island where practitioner access, including by telephone, is practically very difficult if not impossible. The Commonwealth s view is that, generally, it can detain a person in any immigration detention facility it chooses, on the basis that the choice of place of detention is an operational decision not amenable to judicial review. 4 2 See eg Plaintiff S4/2014 v Minister for Immigration and Border Protection (2014) 253 CLR 219, [26]. 3 See the definition of immigration detention in section 5 of the Migration Act. 4 The correctness of this view is beyond the scope of this paper. However, there are some examples where injunctions have been granted preventing a person s transfer from one place to another, not because of a judicial review challenge but for some proceeding-related reason: see eg Stretton v Minister for Immigration and Border Protection (2015) 149 ALD 527 (interlocutory injunction granted preventing transfer to Christmas Island in context of judicial review proceeding of visa cancellation because of difficulty obtaining instructions from Christmas Island); SZVCP v Minister for Immigration and Border Protection [2016] FCAFC 24 (interlocutory injunction granted preventing transfer to Christmas Island because of likely recriminations on Christmas Island arising from non-citizen s whistleblowing). In addition, Chapter 4 of the Department s own Detention Services Manual states that if legal proceedings are ongoing, the detention placement should be such that the detainee is able to consult with their legal representative and participate in those proceedings where applicable (although practice does not always reflect this policy).
3 9. The Commonwealth can also, and frequently does, shuffle people between different places around the country. Not only that, the increasingly common practice is that the Commonwealth will move people without warning (to either the lawyer or the client), and will not give any assurance that a person will not be moved, even if the lawyer requests notice. 10. Sometimes it may be possible to obtain an injunction preventing a client being moved, or moved without notice, but even then, there is the practical issue of whether injunctions are complied with. If the injunction is ignored, outrage may rightfully ensue, but there is no certainty as to what a Court might do, if anything, in response to non-compliance. There are various practical strategies that can be employed to try to ensure compliance with an injunction, although they are beyond the scope of this paper. 11. All of the above creates significant practical challenges for lawyers representing people in detention. The obtaining of even the most basic instructions can be very difficult. 12. Assuming the client can be located and instructions obtained, the third issue is the conditions in which a person is detained. There are plenty of stories about the substandard conditions of detention (both onshore and offshore), and injuries sustained by people in detention. 13. The Commonwealth has a duty to ensure that reasonable care is taken of people who it has detained. 5 The consequence is that the Commonwealth may be negligent if detention causes or materially contributes to injury, or exacerbates pre-existing injury. That may entitle the person to damages, or in some cases, a mandatory injunction directing the Department to provide a particular health care regime. 6 14. A significant limitation of negligence is the requirement for the detention to be linked to an actual injury. It is not enough for the detention to be normatively objectionable. 5 S v Secretary, Department of Immigration & Multicultural and Indigenous Affairs (2005) 143 FLR 217, [207]; A.S. v Minister for Immigration and Border Protection [2014] VSC 593, [24]. 6 See eg MZYYR v Secretary, Department of Immigration and Citizenship (2012) 292 ALR 659.
4 15. There are also practical difficulties in proving negligence, especially if the client is still in detention. The Commonwealth will assert that it has a unilateral right to decide who can visit people in detention, and sometimes denies medical practitioners access even for the limited purpose of examining clients in the context of litigation. 7 This hinders the person s ability to get the expert evidence which is needed to prove a case. 16. These problems may not exist for a client who is out of detention. However, for a client who is still in detention, not all is lost, as will be discussed below. Torts 17. From the above, it will be apparent that the following torts may be available to challenge a person s detention: a. misfeasance in public office; b. false imprisonment; c. battery; d. negligence. 18. Each of these have their own advantages and disadvantages, as set out in the table below. 19. Generally, misfeasance and false imprisonment claims will be the most difficult to make out (misfeasance because of the difficulty in proving malice, and false imprisonment because of the broad statutory power to detain). If the detained person has been injured in detention (whether physical or psychiatric), it may be more productive to focus on a negligence claim instead. 20. One key limitation is that none of these causes of action, if made out, necessarily entitle the person to an order for release not even false 7 See eg the facts in Maurice Blackburn Pty Ltd v Commonwealth (2014) 255 FCR 13. The correctness of this decision, at least in relation to the Federal Circuit Court s jurisdiction, is doubtful in light of Minister for Immigration and Border Protection v SZSSJ (2015) 90 ALJR 901, [58]-[73].
5 imprisonment. 8 If a person is an unlawful non-citizen, a Court cannot order their release. However, damages and injunctions can still provide some accountability. Tort Advantages Limitations Misfeasance in public office False imprisonment Damages not limited by reasonable foreseeability (unlike for negligence) Actionable without proof of damage Battery/assault Actionable without proof of damage Negligence The duty to ensure that reasonable care is taken of detainees is wellestablished, even if the precise scope is uncertain 10 Fact scenarios may entitle a person still in detention to an injunction for treatment or relocation, as well as damages Requires malice or reckless indifference that the impugned act or omission was beyond power, and that there was an intention to cause injury or reckless indifference to likelihood of injury which will be very difficult to prove There is a very broad statutory power to detain, so in many fact situations, this will not be arguable Unauthorised maritime arrivals are prohibited from alleging false imprisonment in a proceeding, while they remain detained 9 Damages may be only nominal, depending on the counterfactual A client still in detention is likely to be unwilling to commence proceedings Moral outrage over the Department s conduct is not enough; acts must cause injury Often requires expert evidence, which may be difficult to obtain Limits on damages and injury thresholds may apply, depending on the law of the relevant jurisdiction 8 Migration Act 1958 (Cth), s 196. 9 Migration Act 1958 (Cth), s 494AA. 10 See eg S v Secretary, Department of Immigration & Multicultural and Indigenous Affairs (2005) 143 FLR 217, [207]-[213].
6 B. NEGLIGENCE 21. Physical injuries in immigration detention can occur through a range of circumstances. Real life examples include: a. one person in detention being assaulted by another detained person; b. a person in detention being injured by some other physical event in detention, such as an accident; c. a person in detention having an existing injury or medical condition before they were detained, and no or inadequate medical care being provided in detention to manage that injury or condition. 22. Also common are psychiatric injuries. Real life examples include: a. a person already having a mental illness when they are detained, and no or inadequate care being provided to manage that illness; b. a person in detention experiencing or witnessing a traumatic event, such as a person witnessing another harm themselves; c. the very conditions of detention causing mental injury, particularly if detention is prolonged (sometimes referred to by mental health practitioners as detention fatigue ). 23. If the client has been injured or has had an injury exacerbated while in detention, then a negligence claim may be available. A successful claim requires the plaintiff to establish that: a. the defendant owed the plaintiff a duty; b. the duty was breached; c. the breached caused an injury (whether of a physical or mental kind, such as the examples above).
7 24. A further consideration will be the appropriate form of remedy. Damages is the usual remedy, and will also often be appropriate in the immigration detention context. However, a tortfeasor is not entitled to continue committing the tort, so if the client is still in detention, it may be more appropriate, at least in the short term, to seek an interlocutory injunction directed towards the provision of the required health care. 25. Some practical issues in relation to each of these matters are discussed below. Duty 26. As observed above, the Commonwealth owes a duty to people in immigration detention to ensure that reasonable care is taken of them. This is generally uncontroversial. The duty arises from the fact that the Commonwealth has deprived people in detention of all means that would otherwise be available to them in the free community to care for themselves. 11 The similarities between immigration detention and prison mean that the duty is often compared to that of gaoler and prisoner. 27. In some situations such as where a client is assaulted by another person in detention, consideration will need to be given to foreseeability. However, for most fact scenarios, foreseeability follows from the gaoler/prisoner nature of the relationship. For psychiatric injuries, there is plenty of medical evidence that detention is harmful to mental health, of which the Commonwealth is aware, and none of which is seriously challenged by medical practitioners. 12 Breach 28. Establishing breach requires more thought. It will rarely be sufficient to simply infer a breach of duty from the fact of injury. The focus needs to be on what the Department has specifically done, or not done, which led to the injury. 11 S v Secretary, Department of Immigration & Multicultural and Indigenous Affairs (2005) 143 FLR 217, [212]. 12 See eg Janette Green and Kathy Eager, The health of people in Australian immigration detention centres (2010) 192 Medical Journal of Australia 2, 65.
8 29. Clear instructions about what happened in detention are required. These will usually need to be provided by the client. 30. However, client instructions may not necessarily be enough: there is the usual problem that a client simply may not know or cannot communicate the full story. Instructions sometimes might not even be possible to obtain, because access to the client may be hindered (through the Department imposing conditions on visits or telephone contact, or because the detention centre operator may claim to not know where a client has been moved to). It is also often not possible to obtain urgent instructions (because the Department insists on lengthy prior notice so that they can decide whether to approve a contact request). 31. One way to deal with this is to seek documents kept by the Department. 32. The Department closely monitors people in detention and keeps records. There are health records (often created by its sub-contracted provider, International Health and Medical Services), which are ultimately controlled by Department officials. These records document when medical attendances occur, what clinical observations are made during those attendances, and what treatment if any has been provided. The records may also contain psychological support plans recording actions in relation to psychiatric injuries. 33. The Department also keeps records about the daily routine of people it detains. These dossiers are maintained by Serco, the operator of the detention centres. They are like the progress notes kept by prisons, containing detailed observations made by detention centre guards about the person in detention. Sometimes there may also be behaviour management plans which document what a person has allegedly done and what correctional-style response occurred, and more general individual management plans. 34. The Department will also typically have other records such as minutes of meetings in which Department officials discuss the progress of people in detention, and, possibly also emails between Department officials discussing whether to approve health care decisions already made by the medical practitioners who the Department has contracted to provide health care in the detention centres.
9 35. All of these records can be accessed through freedom of information requests made to the Department. 13 The records may not accurately reflect reality, but they provide a starting point for investigating what has happened to the client, and determining whether there has been a breach of duty. 36. In other situations, it may also be desirable to seek orders from the Court for inspection of the detention centre itself, including for the taking of videos and photographs. 14 If in a trial, there may also be forensic benefit in having the judge or jury conduct a view of the detention centre. 15 Causation and injury 37. In most cases, proof of causation and injury will come from the expert opinion of a doctor (whether a primary health or mental health practitioner). 16 In one sense, the doctor s task will be no different to what is required in ordinary personal injury litigation. However, the precise requirements are somewhat different, depending on whether the client in urgent need of medical attention and still languishing in detention. This is because the desired remedies are likely to be different. 38. For a client who is not in urgent need of care (or is out of detention and can obtain that care himself or herself), the doctor should be specifically asked to provide an expert opinion on: a. the injuries the client has; b. the likely cause of the injuries; and c. the treatment that is required. 13 In some circumstances, preliminary discovery may also be appropriate. Also, many Freedom of Information Act requests are not being finalised by the Department within the statutory time limit. 14 See eg Federal Court Rules 2011, r 14.01; Supreme Court (General Civil Procedure) Rules 2015 (Vic), rr 37.01-02; Uniform Civil Procedure Rules 2005 (NSW), r 23.8. 15 Uniform Evidence Acts, ss 52-54. 16 An exception might be where a client is assaulted by another in detention, so the cause can be established from lay evidence alone.
10 39. The doctor should form his or her opinion ideally based on an attendance on the client, and the documentary material obtained from the Department. 40. If the doctor is unable to comment on causation, consideration will need to be given as to how else causation might be proved. Without a way to prove causation, the negligence claim will not succeed. Injunctions 41. The focus of the doctor for a client who is still in detention and in need of urgent care is somewhat different. 42. A client still in detention may be being harmed because: a. the medical treatment required is not being provided; b. the medical treatment required cannot be provided at the place he or she is being detained (because of the unavailability of the specialists or facilities at that place); or c. the particular place of detention itself is causing harm (a historical example being Baxter, a current example being Christmas Island). 43. In these situations, the priority is to get the client the required care. From a practical perspective, the immediate focus will therefore be less on breach and causation (although those elements are still important for any eventual pleading and trial). Importantly, a proceeding does not need to be on foot in order for the practitioner to help the client. 44. In the situation where the medical treatment required is not being provided, the doctor should be asked to provide a report setting out what treatment is required. The lawyer should also gather evidence to demonstrate that the treatment is not being provided (which might come from the Department s medical records, or the client s instructions, or the doctor). 45. In the situation where the medical treatment required cannot be provided at the particular place of detention (because for example, the place is so remote that
11 the necessary care cannot be provided there), the doctor should be asked to provide a report setting out what treatment is required, why it cannot be provided there, and where it can be obtained. 46. In the situation where the particular place of detention itself is the cause of harm, the doctor should be asked to provide a report setting out why that is the case. 47. In every situation, the lawyer must apply the usual discipline required when dealing with an expert, 17 even if no proceeding has been commenced. 48. The report, once obtained, should be promptly served on the Department. In each case, the objective is to put the Department on notice about what the client needs, so that a failure of the Department to act may amount to a breach of the duty of care. If such a failure occurs, the doctor s report will facilitate quick action and provide the evidentiary foundation for an injunction that compels the provision of a particular health care regime, 18 or the move or preventing the move of the client, 19 as the case requires. 25 February 2017 Min Guo Castan Chambers (03) 9225 8365 min@guo.com.au guo.com.au 17 Expert evidence is a whole other issue worthy of a paper of its own. The rules of the various courts set out what is required for independent expert s report to be admissible. See also more generally, section 79 of the Uniform Evidence Acts. 18 See eg MZYYR v Secretary, Department of Immigration and Citizenship (2012) 292 ALR 659. 19 See eg Secretary, Department of Immigration and Multicultural and Indigenous Affairs v Mastipour (2004) 207 ALR 83 (to move a person from one place of harm and prohibit the transfer to another where harm will also occur); D7 v Minister for Immigration and Border Protection [2016] FCA 1331 (to preserve the status quo pending a trial of the issues).