Christmas Island medical transfer medivac medevac asylum seeker manus nauru

The Morrison government’s decision to reopen Christmas Island for the transfer of sick and mentally ill asylum seekers from Manus Island and Nauru will be an expensive one for Australian taxpayers. 

The well documented lack of medical facilities on Christmas Island means that the Commonwealth, if it chooses to go through with transfers, will be breaching its legal duty of care to provide proper medical care to detainees. Australia has already, since the Howard government’s ramping-up of mandatory detention in 2001, paid out an estimated $250 million or more to compensate for past breaches of duty of care. This includes the $100 million in damages and costs in a major class action brought by Manus detainees.

Non-delegable care

When it comes to asylum seekers, the Commonwealth owes what is called a non-delegable duty of care. This means it cannot shift onto contractors its responsibility for the physical and mental care of those it detains. When it comes to healthcare the law is also clear. A widely cited 2005 Federal Court decision involving Baxter detention centre in South Australia found that the Commonwealth has to ensure healthcare services are reasonably designed to meet the healthcare needs of detainees, and that reasonable care and skill is required in the delivery of healthcare services.

Given the clear obligation of the Commonwealth, it is extraordinary that it would deliberately choose a location for healthcare provision that is inherently inadequate at every level. 

As mayor of Christmas Island Gordon Thomas said this week, there are only six beds at the island’s hospital and people frequently need to be medivaced to Perth for treatment. 

“Women cannot give birth on Christmas Island, all childbirth occurs in Perth. There’s no surgery. The operating theatre was closed many years ago with some compliance issues,” Thomas said.

He added that psychiatric services were also provided in Perth.

Mounting costs

Not only is it highly likely that, under such circumstances, the government would fail to meet its duty of care obligations, the deliberate choice of Christmas Island could also lead courts to award what are called punitive or aggravated damages against the Commonwealth.

These are damages awarded in cases where the wrongdoer has behaved contemptuously or deliberately sought to harm the claimant. It would be an easy argument to mount that the Morrison government has sought to inflict further harm by choosing a venue for medical care that is known to be utterly unsuited for this purpose.

In addition, taxpayers can expect vast sums to be spent on Commonwealth lawyers defending challenges to the decision. On a number of occasions courts have said the Commonwealth’s duty of care towards asylum seekers includes transferring them to Australia to receive adequate healthcare. Challenges, then, would not be difficult. If the plan goes ahead, we can expect many urgent cases being filed in the Federal Court by lawyers acting for desperately ill asylum seekers who are not getting adequate care on Christmas Island.

The contempt shown by Australian governments when it comes to asylum seekers makes you wonder what moral authority politicians have to fulminate about the need for obedience to the law of the land.

Greg Barns is a barrister and a spokesman for the Australian Lawyers Alliance

Peter Fray

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