Justice Cameron Macaulay of the Victorian Supreme Court has approved a $70 million settlement in a class action on behalf of 1,923 asylum seekers who were detained at Australia's immigration facility on Manus Island in Papua New Guinea between November 2012 and May 2016.[1]
The claimants had alleged the Commonwealth of Australia and other defendants had falsely imprisoned the asylum seekers and breached duties of care, causing physical and psychological harm.
The $70 million settlement was agreed in July after several years of pre-trial preparations, led by Justice Michael McDonald, and four days of mediation conducted earlier this year by Associate Justice John Efthim of the Supreme Court's mediation team.
In reaching a settlement, the parties have averted a trial that was scheduled to last for at least six months. Justice Macaulay noted that, had the trial proceeded, it could have cost the parties significantly more than the millions of dollars to date and there was a risk that any outcome would be appealed all the way to the High Court.
If ultimately successful, the claimants might not have received their share of the settlement sum for some years.
'The logistical problems that arise from this ' for locating and distributing settlement monies, if successful, to up to 1900 group members scattered around the world, are obvious,' Justice Macaulay said.
'The uncertain burden of the additional costs that would be incurred, the value of a certain sum now as opposed to an uncertain amount later, are factors which have to be given serious weight.'
Of the 1,923 potential claimants, the court heard that 56 group members are permitted to opt out of the proceeding. As well, 215 of the 1,923 asylum seekers have not yet been contacted; 177 of these are in countries other than Papua New Guinea or Australia.
Justice Macaulay noted the Commonwealth had recently provided alternative contact details for 115 of the 177 former detainees now residing in other countries. For that reason, His Honour has extended the final date for group members to register in the settlement. Registration will now close on 13 October 2017.
The judge also noted there was considerable urgency about formalising approval, as the Manus Island detention centre is due to close in late October and it is not clear where the remaining asylum seekers will be settled after that date. The Court has previously heard former detainees reside in at least 18 countries, including Papua New Guinea, Iran, Iraq, Lebanon, Bangladesh and Sudan.
The case attracted intense public interest both in Australia and overseas, and involved serious allegations against the Commonwealth of Australia.
In approving the settlement, Justice Macaulay said he was required to consider whether the settlement was fair and reasonable and whether it was in the interests of the group as a whole.
He said the proceeding was 'without doubt, one of considerable complexity, both factually and legally', and the settlement sum was 'relatively generous' when measured against the complex risks relating to liability that would have arisen at trial.
'I am comfortably satisfied that although an arguable path home existed for the plaintiff in many of the risk areas he and group members faced, the collective weight of risks, which were real and not merely theoretical, justified a marked discount from the highest award the plaintiff and group members may have been able to achieve, had all gone their way, to secure a fair and reasonable compromise, and thereby avoid the prospect of loss or a significantly inferior outcome,' he said.
Justice Michael McDonald said pre-trial preparations over the past few years had involved a 'very complex raft of interlocking issues', and resolution of the preliminary matters had required the expertise and services of several members of the Supreme Court.
Previously, Justice Macaulay handled numerous claims for documents to be kept confidential on the basis of Cabinet privilege or legal professional privilege.
Justice Macaulay and Associate Justice Melissa Daly also heard public interest immunity claims arising from the Commonwealth's concerns that disclosure of certain information could 'prejudice the security, defence or international relations of Australia'. The Court also managed certain confidentiality restrictions that would otherwise have limited the evidence given by health workers and other contractors at the Manus Island centre.
The terms of the settlement approved by the Court today include provision of almost $20 million to meet legal costs, a separate sum of $10,000 for the lead plaintiff and payment by the defendants for the costs of the settlement distribution scheme.