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Tuesday, 11 October 2011
Page: 7100

Asylum Seekers

(Question No. 1011)

Senator Abetz asked the Minister representing the Minister for Immigration and Citizenship, upon notice, on 18 August 2011:

Have any detainees or former detainees at immigration detention facilities initiated legal action against the Commonwealth for illegal detention: if so:

(a) how many;

(b) how many claims have been: (i) settled, or (ii) contested in court, by the Commonwealth;

(c) what has been the: (i) average, and (ii) total cost of settling these claims to date;

(d) which law firms, centres or practitioners have acted for such claimants;

(e) how many claimants has each firm, centre or practitioner represented; and

(f) has any firm, centre or practitioner been in receipt of funding from the Commonwealth for acting on behalf of detainees or former detainees; if so, in each case, how much was the funding.

Senator Carr: The Minister for Immigration and Citizenship has provided the following answer to the honourable senator's question:

(a) For the period 1 January 2000 to 1 August 2011, the Department of Immigration and Citizenship's records show that 63 claims for compensation have been filed in the courts that include claims of unlawful detention by detainees or former detainees. All compensation payments were to persons in immigration detention prior to August 2007.

(b) Of these 63 claims, Department records show: 32 were settled prior to hearing with compensation paid; 17 are currently ongoing before the courts (including matters on appeal); 6 applicants have withdrawn; the court has found in the Department's favour in 6 matters; the Department lost 1 matter that resulted in compensation being paid; and the Department withdrew from 1 matter (no compensation was paid).

As these matters may have also raised other claims (such as personal injury), it should not be assumed that the unlawful detention claim formed the basis for any settlement. As such, although it was claimed in each of the matters, settlement does not necessarily mean that the applicant was unlawfully detained.

(c) Departmental records show that a total of $10,217,645 was paid in compensation in relation to matters in which an unlawful detention claim was made. This figure is only approximate as some settlements were inclusive of costs, while others were exclusive of costs. This amounts to an average settlement payment of $309,626 for the 33 matters in which compensation was paid. However, and as noted above, other claims may have been raised in these matters, so the compensation may not only relate to unlawful detention claims. All compensation payments were to persons in immigration detention prior to August 2007.

(d) and (e) Plaintiffs may have changed legal representation during the course of the proceedings, however, departmental records show that the following law firms, centres or practitioners initially acted in the above mentioned matters:

-   Legal Aid NSW, represented 11 plaintiffs

-   Michaela Byers, represented 9 plaintiffs

-   Self represented, 6 plaintiffs

-   Walter Madden Jenkins Solicitors, represented, 5 plaintiffs

-   Victoria Legal Aid, represented 4 plaintiffs

-   Mark A Cruice Lawyers, represented 4 plaintiffs

-   Christopher Levingston & Associates, represented 3 plaintiffs

-   Holding Redlich, represented 3 plaintiffs

-   Carroll & O'Dea Lawyers, represented 2 plaintiffs

-   Michel Jones, Solicitor, represented 1 plaintiff

-   Thomson Playford, represented 1 plaintiff

-   Burn and Swift Lawyers, represented 1 plaintiff

-   Mark Andrews & Associates, represented 1 plaintiff

-   Messrs Kazi & Associates Solicitors, represented 1 plaintiff

-   McDonald Steed, represented 1 plaintiff

-   Parish Patience, represented 1 plaintiff

-   Friedman Lurie Singh & D'Angelo Weste Solicitor, represented 1 plaintiff

-   Freedman Lawyers, represented 1 plaintiff

-   Milne Berry Berger Freedman, represented 1 plaintiff

-   Christie & Strbac, represented 1 plaintiff

-   Teakle Ormsby Conn, Lawyers, represented 1 plaintiff

-   Wyatt Attorneys, represented 1 plaintiff

-   AJ Torbey & Associates, represented 1 plaintiff

-   Murphy Schmidt, represented 1 plaintiff

-   PSK Legal lawyers, represented 1 plaintiff

(f) No firm, centre or practitioner has been in receipt of funding administered by the Department of Immigration and Citizenship for the purpose of bringing a claim for compensation for unlawful detention.

The Commonwealth Attorney-General's Department administers Commonwealth funding arrangements for legal aid through the National Partnership Agreement on Legal Assistance Services with the States and Territories. Services are delivered by State and Territory legal aid commissions which are independent State and Territory statutory bodies. Under the National Partnership Agreement on Legal Assistance Services, "migration matters where assistance is not available from services funded by DIAC" are a legal aid service priority. It is up to legal aid commissions to determine whether to provide assistance according to eligibility requirements and in the context of other demands and available resources. The Attorney-General's Department also administers grants to community legal centres.

The Australian Government provides financial assistance to individuals to help with the cost of legal proceedings under certain Commonwealth laws, or where the Commonwealth holds a special interest and mainstream legal aid is not available. The Financial Assistance Section within the Attorney-General's Department is responsible for administering these grants of assistance under a number of statutory and non-statutory financial assistance schemes. There is a longstanding practice, endorsed by successive Attorneys-General, not to comment on whether assistance has been provided through these schemes in individual cases. This practice is consistent with obligations imposed by the Privacy Act 1988. It also protects information provided by applicants which would otherwise be subject to solicitor-client confidentiality.