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Suing over Howard’s camps

Feb 19, 2020 • 14m 51s

The government has spent more than a decade fighting compensation claims launched by more than 60 former asylum seekers detained in Australia’s notorious detention centres. Today, we ask why it’s taking so long.

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Suing over Howard’s camps

165 • Feb 19, 2020

Suing over Howard’s camps

[Theme music starts]

RUBY:

From Schwartz Media, I’m Ruby Jones. This is 7am.

Before the Pacific Solution John Howard opened a series of detention centres in the desert of South Australia. Now, 20 years later, more than 60 former detainees are seeking compensation for psychological trauma.One case in particular could decide the outcome of these compensation claims but the government is doing everything it can to frustrate its progress. Rick Morton on the story of Payam Saadat.

[Theme music ends]

RUBY:

Rick I wanted to talk to you about one case in particular, the case of Payam Saadat. His case is absolutely key to the issue of compensation for these former detainees. Can you tell me a bit about his story?

RICK:

Yeah. So Payam was born in Iran, where eventually as a young adult, he converted to Zoroastrianism, which was antithetical to the rulers because it went against the normal practice of religion in Iran. So often times they were persecuted. Payam thought that this wasn't going to end well for him.

RUBY:

Rick Morton is a senior reporter for The Saturday Paper.

RICK:

So he eventually made his way to Indonesia, where he found its way onto a boat which was bound for Australia when it was intercepted on Ashmore Reef off the coast, the northern coast of Western Australia. December 22 in 2000.

[Music starts]

RICK:

This was the start of a brand new life and not a good one. And then he's transferred to Baxter, which is notorious amongst the old detention centres that were run by the Howard government.

Archival Tape -- Unidentified man #1:

I think it’s probably the worst detention centre I ever visited.

RICK:

I actually spoke to Julian Burnside. He's a lawyer and barrister who previously represented people detained in Baxter.

Archival Tape -- Julian Burnside:

The whole arrangement at Baxter looked as though it was designed to damage people. It really was a maximum security prison. And it's set in the remote parts of the South Australian desert. All the rooms in it faced inwards, so you couldn't see the desert. It was just a horrendous place.

RUBY:

So can you tell me a bit about what life was like for Payam in detention.

RICK:

Payam spent another three years in detention there where he suffered beatings, the fear and anxiety of not knowing if he would be deported to Iran, not receiving psychiatric assessment, when he first arrived in Baxter, despite clearly being unwell. And being called by a number instead of his actual name; it wasn't just him that did this with everyone and it was dehumanizing.

[Music ends]

RICK:

He spent time in a place that they called the management unit, which is this Orwellian speak for a place where you are meant to be held for your own protection or safety, but is actually just a form of torture. You're in isolation. In some cases, you're strapped to a bed. He O.D.'d twice on his own anti-anxiety medication and was taken to the management unit, ostensibly for his own protection, and yet that exacerbated his mental illness. And, you know, he suffered greatly because of that. He developed an adjustment disorder, which is a severe psychiatric illness and chronic depression as a result.

Archival Tape -- Julian Burnside:

What was alarming about it is that, you know, when you went there, you would see detainees sort of sitting around doing reading or thinking or doing nothing, but all looking utterly depressed.

RICK:

This is the crux of the case. And it's not just about him, although it is. But the success or otherwise of his case has implications for the 62 other men and women in this cohort who are also seeking justice.

RUBY:

Rick, the people who were in these detention centres, they were there because they were seeking asylum. What happened to Payam's claim?

RICK:

He's an Australian citizen now. In fact, almost all of them are now Australian citizens or permanent residents. While he was in detention, he had his claim refused through the courts, but eventually won on appeal.
But again, during that process, he received no counselling. There were no clear answers about what would happen to him. And while he was there he watched, you know, some of his closest friends be deported. So you could only imagine what that does to the psyche to see that in front of you.

[Music starts]

RICK:

The fact that he is now ended up as an Australian citizen was something many people at the time would've predicted. And yet we have damaged them psychologically and have ruined their chances of living a full life once they become Australian citizens in this country. It's another form of madness, I think.

RUBY:

We’ll be back in a moment.

[Music ends]

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RUBY:

So when did Payam lodge his case for compensation?

RICK:

So he first filed the case in the district court in South Australia in 2012. And there was actually a mediation set down for this in August 2013. And then, ummmm...

RUBY:

What happened to that?

RICK:

The government changed and the coalition came to power. Suddenly, for whatever reason, and you can read into that as you will but the Commonwealth solicitors were no longer interested in meeting outside court.
And then Payam's legal team had a few dramas in terms of kind of cross communications and and not having the best case put forward. So that dragged through the courts where they had different amendments.

And then finally, in 2018, Payam gets a new senior counsel, Hugh Abbot SC. And he rewrites the statement of claim and says this isn't going to win. And not because you don't...you didn't suffer trauma or psychological distress, but because we haven't addressed the legal points. I mean, at the end of the day, this is a legal argument. The pre-trial judge in the Supreme Court of South Australia actually granted them the ability to rewrite their, well they call it a Statement of Claim.

RUBY:

What's in a Statement of Claim?

RICK:

It's essentially all of the points that you're going to argue at trial. All of the stresses that led to you developing mental illness. And so his Statement of Claim sets out all of this in detail and essentially what the judge said was you're not rewriting a wholesale change here. It's not a brand new case. You're just adding more detail into the same particulars. And that's crucial because the Commonwealth was saying. Actually, no. You've presented a whole new argument. We're not gonna be able to prepare for this. It's too late in the piece. You've changed the whole game.

And the reason they're now trying to stall is because Payam has a case and he has a very strong case. In fact, the judge when the Commonwealth appealed these changes, the judge said this has given him a chance to argue what is a reasonably arguable claim in the court and he would be crippled without this change. And not just him, but the 62 other cases that are waiting in the wings. Payam's case will be a template to the others because clogging the courts up with 62 other cases when all of the facts of their detention are very similar, it makes no sense to try them all individually.

RUBY:

So Payam’s case could open the way for 62 other cases, and the government is stalling now because there is a strong chance that Payam could win?

RICK:

The Commonwealth thought they were going to win. Now they think they're going to lose and so they’ve put the brakes on. They appealed, not just the judges grant of a new Statement of Claim to Payam Saadat, but they appealed the adjournment, which the judge also granted the trial. The same time that Payam Saadat got new legal counsel, and they rewrote his Statement of Claim, the Commonwealth was continuing to disclose bucketloads of documents, records that Payam's Sadat's legal team just couldn't possibly get their heads across in time for trial.

To be fair to them, they have to present those documents as disclosure, it's part of every case, but it was continuous disclosure and it was very close to the start of trial. And there were, you know, we're talking 700 different documents and some of them hundreds, if not thousands of pages long. In order to have a fair trial, your counsel needs to be across that. So at the same time, they granted an adjournment and the Commonwealth appealed against both the new Statement of Claim and the adjournment.

Now, the interesting thing about this case is that the Commonwealth has now spent more time appealing the adjournment to the case than the adjournment would have lasted. They've now taken the decision to knock back the Commonwealth appeal and they've taken it to the High Court of Australia, which is...it raised the eyebrows of many QCs and SCs that I spoke to in preparing this. They were just like that's very interesting behaviour from the Commonwealth, which is meant to be a model litigant, someone who behaves properly in conducting trials because you are the ones that write the legislation. So you're meant to be the flag bearer for good behaviour in the court.

RUBY:

So how unusual is it for the Commonwealth to do something like this, to go all the way to the High Court and seek leave to appeal on a case like this?

RICK:

You know, the Commonwealth is well within its rights to defend itself, but usually the High Court is the domain of appeals for decisions of trials or judges when matters are finalised. They are appealing what is essentially an instruction from a judge, a trial judge about how the trial will be conducted, so they're playing every point.

RUBY:

And what would normally happen in a case like this?

RICK:

We already have had settlements with detainees in other detention centres where the Commonwealth have sat down with them. You can decide to go to mediation and work through this process outside of the courts.

RUBY:

So ordinarily then the government would be going to mediation on this, they’d try to settle it out of court - that’s certainly what happened with the Manus Island case a couple of years ago...

RICK:

So that again, I mean, that was a class action about arbitrary detention. And that's why it could be a class action. But the government decided before it went to trial that they would settle. It wasn't even a huge amount of money.
There was about nineteen hundred, one thousand nine hundred asylum seekers represented in that class action, and the Commonwealth paid seventy million dollars. Now, if everyone subscribed to that after the the judge accepted the orders, then it's about $35,000 each.

Hardly rivers of cash. And they did that before it went to trial because the trial would've been very expensive, and also they probably would have lost. Why they haven't settled in these cases is beyond me because over the years they will have already spent millions of dollars just on their own legal fees.

I think this case in particular, because it involves Baxter and Baxter at the time, was one of the worst, if not the worst. Maybe I'm cynical, but part of me thinks it's just a matter of ‘We don't want to lose’. So I don't think it's purely about the money. I think it's more about this is our border protection regime, and we will do everything it takes to prevent people taking advantage of it. I think that's the way they see it. I actually spoke to Julian Burnside about this, and he seems to think it’s because nobody in the government wants the covers ripped back from Baxter.

Archival Tape -- Julian Burnside:

It's so easy for Australians to ignore what the government did. And what could be their reason for wanting to slow it down if it's not to prevent the public from learning, through evidence, what Baxter was like, what the government did to people who had the temerity to try and escape persecution and seek safety here.

RUBY:

Rick, it's been 20 years now since these people were detained and 10 years since they decided to seek compensation. What did timelines like that mean for these people?

RICK:

It's a really human affair because, you know, while people are waiting for justice, they're dying.

[Music starts]

RICK:

At least two people from the cohort have died already. One of them, Ariff, died, apparently just having given up on I'm on life. You know, he died of natural causes, but he also died alone in a one person unit in Adelaide. And it didn't have electricity for the seven months before he died. And his body wasn't discovered for a few days because the only friends he had were other Iranian men who had also served time in Baxter Detention Centre. This is a government that loves its citizens and these people are its citizens. But the longer this goes on, the less likely it is that they will have any of those things because they've been stuck in this kind of netherworld.

RUBY:

And what about Payam?

RICK:

He waits. He's still waiting. And he is the hope for the others.
To me, it's an ongoing form of detention. Refusing to close these matters is another sentence in and of itself.

[Music ends]

[Theme music starts]

RUBY:

Also in the news, Victoria’s education regulator has announced it will investigate St Kevin’s College is compliant with child safety standards. It comes after it was revealed that the private school did not provide support to a victim who was groomed by a former athletics coach. Premier Daniel Andrews said on Tuesday that the school’s leadership had “some very real questions to answer.” Earlier this week the ABC revealed the school’s principal had provided a character reference to the coach.

And more than 200 Australians will be evacuated from the Diamond Princess cruise ship today after being stranded for two weeks. There have been 454 cases of coronavirus on the ship, which is currently docked in Japan. The Australian government offered to evacuate all citizens on the ship. They’ll be flown to Darwin and quarantined for 14 days.

I’m Ruby Jones, this is 7am, see ya tomorrow.

More than 60 former asylum seekers are seeking compensation for the psychological trauma they endured in Australia’s notorious Baxter detention centre. Now the lead case has stalled in the court system, delaying a decision. Rick Morton on the legacy of John Howard’s desert camps.

Guest: Senior reporter for The Saturday Paper Rick Morton.

Background reading:

Government stalling on Howard refugee compo in The Saturday Paper
The Saturday Paper
The Monthly

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7am is hosted by Ruby Jones. The show is produced by Ruby Schwartz, Atticus Bastow, Elle Marsh and Michelle Macklem. Brian Campeau mixes the show. Our editor is Osman Faruqi. Erik Jensen is our editor-in-chief. Our theme music is by Ned Beckley and Josh Hogan of Envelope Audio.

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auspol asylumseekers refugees detention baxter




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165: Suing over Howard’s camps