Two children who were detained offshore in Nauru have won federal court settlements from the Australian government for medical negligence and abdicating its duty of care.
The judgments for the two cases, identified as FBV18 and AYX18, came within days of each other at the end of August.
The confidential settlements, which protect the identities of the children and their families, are the first of 45 similar lawsuits brought by the National Justice Project (NJP).
“Successfully seeking financial compensation for our clients sends a message to the government,” principal solicitor Emma Hearne told AAP.
“We have put them on notice – now asylum seekers are again being sent to Nauru – that Australia cannot inflict abuse and neglect upon refugees in detention without being held to account.”
FBV18 arrived with their family by boat in July 2013 and were detained on Christmas Island before being transferred to the regional processing centre on Nauru a year later.
Over the next two years they were held in various locations between Australia, Papua New Guinea and Nauru.
They were eventually moved into community detention in Australia in October 2018 when the court ordered they be evacuated for medical treatment.
In the second case, AYX18 also sought asylum to Australia in July 2013 with his family by boat and was detained in Nauru.
The court heard the government failed to provide appropriate medical treatment and reunification with his father, who was transferred separately to Australia in June 2016.
Father and child were kept apart for more than 18 months and it was alleged the son developed symptoms of psychological injury.
“The cases reinforce the legal principle that the commonwealth has a duty of care to asylum seekers offshore and now that the Medevac law has been repealed, this principle is their only enforceable protection,” Hearne explained.
The cases date back to 2018 when NJP and other advocates asked the court to order the Morrison government to transfer critically ill children to Australia to receive appropriate medical care.
The government at the time relented amid a wave of distressing reports of several children self-harming including a 12-year-old girl attempting to set herself on fire.
Successive governments have fought the lawsuits brought by the project, maintaining the Federal Court did not have jurisdiction, culminating in the High Court in December 2020 rejecting the government’s arguments.
The government contested any harm suffered by the children should be taken up in Nauru’s legal system rather than Australia.
Hearne said these landmark settlements pave the way for some justice for these children.
“We hope to drive systemic change through the Australian legal system so no refugee will ever have to endure such horrific mistreatment again.”
“These cases are critically important as the government continues to argue they don’t owe a duty of care to any of the people they have sent to Nauru.”
The settlement sums will be held in trust and managed by NSW and Victoria until the applicants turn 18.
