High Court test cases decision a win for asylum seekers’ health care

2 December 2020
Asylum seekers and refugees will not face additional delays and costs in applying for urgent lifesaving healthcare through the courts, after the High Court ruled that their cases could continue in the Federal Court.

In the decision on a Commonwealth appeal relating to four asylum seeker test cases, the High Court has found that all legal claims challenging the adequacy of healthcare while in offshore detention can be heard in the Federal Court.

The High Court was critical of aspects of the Commonwealth’s legal challenge noting that the law in question was a defence that could be raised and not a broad limit on the jurisdiction or power of the courts to hear cases.

Maurice Blackburn and the National Justice Project act for refugees in the four test cases. All four refugees are children.

Principal lawyer Jennifer Kanis, who heads the social justice practice at Maurice Blackburn, welcomed the decision, saying it provided a clear pathway for all current and future legal claims regarding standards of health care in offshore detention.

“Today the High Court has confirmed that people in offshore detention in Nauru and Manus Island can seek urgent, lifesaving treatment through the Federal Court.”

“This decision means that refugees and asylum seekers will not have to endure the additional cost, inconvenience and delay of bringing health care claims through the High Court, which could have had disastrous consequences for their health.”

“This is an important precedent regarding where asylum seekers claims challenging the adequacy of health care should be heard, and ensures the Commonwealth is held to account in a timely manner over the way they treat these children, who are ultimately in their care.”

“We welcome the High Court’s decision which provides certainty that other courts have the power to hear these claims.

“It is now incumbent on the Commonwealth to adopt a practical approach to these matters in keeping with their obligations as a model litigant.

“The High Court chose to see the law in question as a defence that the Commonwealth could raise as part of the normal conduct of legal proceedings. The High Court rejected the construction that the law was intended to be a broad limit on the power of courts to even hear these claims.” 

More than 50 cases alleging the Commonwealth was negligent by providing poor health care that caused serious harm and suffering have been on hold pending the outcome of this legal challenge.

“People seeking asylum, including young children, have already experienced delays in accessing critical and lifesaving healthcare because of the Commonwealth’s offshore detention policy.” Ms Kanis said.

“Children held in offshore detention due to Australian Government policy have the right to be treated compassionately and receive the same standard of care as all children in Australia.

“We allege that the Australian Government owed these people a duty of care. Instead, they pursued this legal challenge to the highest court in the land.

“A backlog of more than 50 cases of alleged inadequate healthcare in offshore detention has been languishing in the court system for two years while the Commonwealth pursued this case.

“It’s been an unnecessary, time-consuming and expensive road block to accessing justice.”

Ms Kanis also called on the Commonwealth not to forget those who were still in detention on Papua New Guinea, Nauru and in Australia.

“We urge the Commonwealth to ensure people who remain in detention have access to proper and timely medical care.”

Media inquiries: Paddy Murphy at Maurice Blackburn pmurphy@mauriceblackburn.com.au or 0490 297 391

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