On 24 October 2011, ABC's Four Corners Programme ran a story entitled "Asylum". It covered the very poor conditions in Australia's detention centres and the mental harm that it is causing to long term detainees. Doctors on the programme said that although most people are mentally resilient, the consequences of long term detention are known to be harmful. Such harm is further exacerbated when the detainees are unable to obtain appropriate psychiatric treatment.
The documentary raises the issue of what legal liability arises from such poor treatment. It is clear that the Commonwealth, in detaining asylum seekers, owes them a legal duty of care. Even if people have arrived here illegally, the Commonwealth must still act reasonably whilst such people are under their care and control.
In "Asylum" allegations were made of inadequate medical and psychiatric treatment; inappropriate medication given; and insufficient monitoring of the detainees response to medications. If such allegations were raised in Australia's public health system, there would be immediate concern and outrage.
The situation is even worse for the children detained in such facilities. The AMA has described the mandatory detention of minors as child abuse.
Just as victims of medical negligence can sue a doctor or a hospital, these detainees have legal rights too if the treatment provided to them is negligent.
Damages claims for detainees are complex. It must be acknowledged that many of the refugees in detention have already suffered considerable upset from traumatic events witnessed in their homeland. However the Commonwealth can be held liable if it can be proved that the treatment given was unreasonable and caused further psychiatric injury to the detainee.
Damages claims for such victims may soon flood in to the courts if the treatment the Commonwealth provides to those in mandatory detention does not readily change.