Lawyers for four children trying to sue the federal government over poor medical services while they were in offshore detention are claiming a win in the High Court on Wednesday, despite the court ruling in favour of the government’s appeal.
Lawyers for the asylum seekers argued in the High Court that asylum seekers should be able to bring action against the government in state courts and the Federal Court.
But the government’s argument relied on a certain part of the Migration Act, which in some circumstances prevents asylum seekers from launching action anywhere but the High Court.
While the Commonwealth did win its appeal in the High Court on Wednesday, not everything went its way.
The government argued such cases should only be the domain of the High Court.
But the court found the relevant section of the Migration Act did not take away the jurisdiction of the lower courts to hear and determine such matters.
The court said instead the law gave the Commonwealth the option of using it as a defence.
The court said whether that defence was relevant depended on the issues raised in each individual case.
“These appeals are not concerned with whether the respondents were owed the pleaded duty of care or whether that duty, if owed, was breached,” the joint judgment said.
“Although each appeal should be allowed and the cross-appeals dismissed, the answers given to the separate questions are not the answers the Commonwealth sought.
“In these circumstances, each party should bear their own costs of their proceeding in this Court.”
Cases included two-year-old taken to PNG
Up to 50 other similar cases have been waiting on the outcome of Wednesday’s ruling.
Lawyers representing the asylum seekers said they were concerned that if the issues had to be determined by the High Court, cases would take much longer to resolve and be much more expensive.
George Newhouse from the National Justice Project, which argued in favour of the asylum seekers, said the government’s hopes of having the cases limited to the High Court had been dashed.
“We’ve argued successfully at every stage that the Federal Court has the jurisdiction to hear these claims. Today, the High Court agreed,” he said.
“Now, we will fight in the Federal Court to make the government accountable for what it has done to these children.”
Each of the four test cases before the High Court on Wednesday claimed the government failed in its duty of care to asylum seekers in Nauru.
One case was that of a two-year-old girl born on Nauru, who developed a life-threatening neurological condition.
Doctors recommended she be urgently evacuated to a first-world tertiary hospital with a specialist paediatric care unit.
But instead she was taken to Papua New Guinea.
The girl, who was born on Nauru to refugees from Iran, was later brought to Australia, where she remains.
Other test cases included those of a girl who needed acute mental health care after a suicide attempt, and another girl who developed anorexia.