Four test cases alleging the poor health care of asylum seekers and refugees in offshore detention will be considered as part of a High Court appeal that begins on Tuesday 1 September.
The appeal will decide which court should hear claims about inadequate health care in offshore detention. The High Court challenge was brought by the Commonwealth who argues the Migration Act requires these claims to be heard only by the High Court.
More than 50 cases relating to allegations the Australian government failed to provide adequate health and medical care to refugees and asylum seekers in offshore detention are currently on hold in the Federal Court pending the outcome of today's appeal.
Social justice law firm Maurice Blackburn and the National Justice Project act for refugees in the four test cases. They will argue these cases should be heard by the Federal Court and state courts.
One of the test cases involves a young refugee girl in Nauru, who at the age of two was diagnosed with herpes encephalitis, a serious and life-threatening neurological condition.
Doctors recommended she be medically evacuated to Australia for urgent tests including an MRI brain scan, but instead she was sent to Papua New Guinea for treatment. A court later ordered her urgent transfer to Australia for recommended tests and ongoing medical care.
Maurice Blackburn principal lawyer Jennifer Kanis, who heads the firm's social justice practice, said the Commonwealth's legal challenge – if successful – would prevent people detained offshore from timely access to justice.
"People seeking asylum, including young children, have already experienced delays in accessing critical and lifesaving healthcare because of the Commonwealth's offshore detention policy," Ms Kanis said.
"Now these people are facing further delays in accessing justice because the Commonwealth insists on fighting their attempts to bring legal action over alleged inadequate medical care that has caused serious harm and suffering."
Ms Kanis said the Commonwealth's appeal in the High Court – if upheld – would also prevent refugees and asylum seekers in offshore detention from making applications to the Federal Court for urgent medical care.
"If refugees and asylum seekers are forced to apply for urgent, lifesaving treatment through the High Court, it would add significant time and cost to the process, with potentially disastrous consequences for their health."
With the outcome of today's appeal not expected for some time, Ms Kanis called on the Commonwealth not to forget those who were still in offshore detention on Papua New Guinea's Manus Island and Nauru.
"While we await the outcome of today's appeal, we urge the Commonwealth to ensure people who remain in offshore detention have access to proper and timely medical care.
"In particular, the recent spike in COVID-19 cases in Papua New Guinea's capital underscores the lifesaving importance of timely access to proper health care."
The High Court's decision on this appeal will impact all cases where refugees and asylum seekers who were in offshore detention argue the Commonwealth failed to provide appropriate medical care.
The decision will also affect any future claims for people who remain on Nauru and Manus Island seeking to hold the Commonwealth accountable for inadequate medical care.
The 50 cases on hold in the Federal Court pending the outcome of today's appeal involve children, women and men with a range of serious – and in many cases life-threatening – physical and mental health issues.
Since 2018, Maurice Blackburn has acted for more than 30 asylum seekers and refugees needing urgent medical care, of which the youngest was a six-month-old child and the oldest was aged in their 80s.
