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Pro bono: Speaking up for asylum seekers

Every Issue

Cite as: Jan/Feb 2015 89 (1/2) LIJ, p.76

Class actions can be a powerful vehicle for pro bono lawyers to help improve access to justice for people without a voice. 

Many lawyers are rightly troubled by the treatment of asylum seekers. There has been a search among public interest lawyers for silver bullet litigation in respect of immigration policies, in particular offshore detention. In general, this focus seems to be on administrative and constitutional points. This is certainly a noble pursuit, perhaps propelled by the success of the M70 (Malaysian solution) case. However, it seems increasingly clear that offshore processing is here to stay for the foreseeable future.

It is imperative that while offshore processing exists, people held in immigration detention still have access to justice through lawyers to assert their legal rights. An example of how pro bono lawyers can address this legal need can be seen in proceedings that Maurice Blackburn has filed on behalf of AS, a child held in immigration detention.

AS was detained on Christmas Island but has since been moved to the Australian mainland. Lawyers for AS allege that the Minister for Immigration and Border Protection, and the Commonwealth, owe a variety of duties to people held in immigration detention. This includes a duty to provide reasonable medical care. awyers for AS allege that the defendants have breached these duties, causing her harm.

Following several visits by its lawyers to Christmas Island, Maurice Blackburn was of the view that many people detained on Christmas Island were suffering physical and psychiatric harm and that such harm was likely being exacerbated by their detention. In the past, these kinds of cases have been litigated individually, with a number of precedents determined at various interlocutory stages. There is a statutory duty to detain asylum seekers without a visa in the Migration Act 1958, but this does not absolve the defendants of their common law duty to take reasonable care to avoid causing the plaintiff harm. Though it seems clear from these precedents that the defendants owe a duty to people held in immigration detention, the nature and content of that duty will need to be fully examined.

Recognising the strain on the legal system litigating each matter of this kind individually, and an opportunity to improve the administration of justice, Maurice Blackburn was instructed to commence a class action and is running the matter on a pro bono basis. AS is the lead litigant and the class covers anyone who was detained on Christmas Island within the last three years (the limitation period) who is injured or was pregnant and has suffered an injury or exacerbation of that injury. On behalf of the class, AS is seeking compensation and an order restraining the defendants from detaining the class members on Christmas Island.

For many in the class, some of the immediate issues raised by the litigation may find a political solution. An order restraining the defendants from continuing to detain people on Christmas Island may not be necessary if people on Christmas Island are given the opportunity to apply for temporary protection visas.

At the very least, this case highlights that class actions can be a powerful vehicle for pro bono lawyers to help improve access to justice for classes of disadvantaged people who might otherwise not have had a voice to challenge their legal rights, and for pro bono lawyers to streamline the administration of justice.


ELIZABETH O’SHEA is the head of the social justice practice at Maurice Blackburn Lawyers.

Looking to help?

To help lawyers and firms become involved in pro bono work – legal services and otherwise – the LIJ profiles a community group and its needs each month. See www.goodcompany.com.au for more skilled volunteering opportunities.

Gould League

Contact: Joanna Cantwell
Email: mail@goodcompany.com.au

Gould League is an Australian not-for-profit environmental education organisation. It aims to empower teachers, students and the community to live more sustainably and protect the environment.

Current needs of group

Gould League is seeking a lawyer to help review its booking terms and conditions for school excursions.

The work can be done offsite via phone and email or onsite. This is a one-off role that the organisation estimates could be completed within eight hours. To volunteer for this role apply at www.goodcompany.com.au.

Goodcompany

See www.goodcompany.com.au for more skilled volunteering opportunities. For more information about volunteering in general see www.volunteeringaustralia.org and www.ourcommunity.com.au.

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