Malcolm Turnbull on Manus Island - Play Misty for Me?

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Construction workers walk around the secure perimeter fence of the Refugee Processing Centre at Lombrum, Manus Island, Papua New Guinea. 2014. © Vlad Sokhin / Panos Pictures

This morning Malcolm Turnbull urged Australian taxpayers, and soon-to-be voters, not to be "misty-eyed" about the plight of those imprisoned in the Australian-funded and operated 'Immigration Processing Centre' on Manus Island.  

No, Mr Turnbull, I am not "misty-eyed" about the Manus detention centre. But I am clear-eyed about the law. 

False imprisonment is a tort attracting awards of substantial damages. It is apparent from the judgement of the PNG Supreme Court, as it must have been to successive Australian Governments, that those detained have been falsely imprisoned, and that the damages to which they are entitled are mounting by the day. 

Perhaps more importantly, they have been deprived of their liberty, and deprivation of liberty, as in Australia, is a serious crime.  Under section 355 of the PNG Criminal Code. It is punishable by up to three years imprisonment.  Before Minister Dutton and his officials fly off to Port Moresby they might also ponder section 13:

OFFENCES PROCURED OR COUNSELLED BY PERSONS OUTSIDE PAPUA NEW GUINEA.

(1) A person who–

(a) while outside Papua New Guinea procures another person to do or omit to do an act in Papua New Guinea of such a nature that, if he had himself done the act or made the omission, in Papua New Guinea, he would have been guilty of an offence; and

(b) afterwards comes into Papua New Guinea,

is by coming into Papua New Guinea guilty of an offence of the same kind, and is liable to the same punishment, as if he had himself done the act or made the omission in Papua New Guinea.

(2) A person who–

(a) while outside Papua New Guinea counsels or procures the commission of an offence that is actually committed in Papua New Guinea; and

(b) afterwards comes into Papua New Guinea,

is guilty of an offence of the same kind, and is liable to the same punishment, as if he had been in Papua New Guinea when the offence was committed.

No, Mr Turnbull it is not an Immigration Processing Centre.  It is plainly, as you as a lawyer must have known, and as the Supreme Court of Papua New Guinea has held, an illegal prison, funded, controlled and operated by the Commonwealth.

How nominal is “nominal” in nominal damages?

In Fernando v Commonwealth (No 5) [“Fernando”] the trial judge, upon remittal by a Full Court, awarded the applicant nominal damages of $1.00 after a finding that he had been falsely imprisoned by the Commonwealth for 1,203 days. 

His Honour held that Mr Fernando had suffered no damage or loss sounding in substantial damages, as it had been open to the Common-wealth to have lawfully imprisoned him had it so chosen.  The damages award was upheld by a second Full Court.  

Mr Fernando’s litigation representative has applied for special leave to appeal on the question of whether an award of nominal damages was appropriate in the circumstances.  However, the question remains: did an award of $1 amount to nominal damages, or was it rather not consistent with an award of contemptuous damages?

In New South Wales v Stevens[“Stevens”] the State appealed against an award of $10,000 by way of nominal damages after the State had admitted liability.  The Court of Appeal considered the circumstances in which an award of nominal damages was appropriate, and then determined the appropriate amount for such an award.  After considering the cases,  it concluded that in 2012 nominal meant, for the purposes of the case under consideration,  $100, and substituted that amount for the $10,000 ordered by the primary judge.

In Kambouris v Tahmazis, after considering Stevens, the trial judged concluded, subject to the submissions of counsel, that an identical award would be appropriate in that case.

The vast disproportion between the award in Fernando, and the awards in the other two cases, suggests that primary judge in the former may have misunderstood the distinction between nominal damages and contemptuous damages, an award of $1.00 being more appropriate to an award of contemptuous damages.  In Habib v Nationwide News Pty Ltd (No 2) the Court of Appeal noted, citing Connolly v Sunday Times that: “Contemptuous damages  are tantamount to an expression of disapproval of, or contempt for, the plaintiff.”  That the primary judge ordered the Commonwealth to pay Mr Fernando’s costs on an indemnity basis is hardly consistent with any such disapproval.

As the Court of Appeal noted in Habib the authorities that refer to contemptuous damages tend to refer to amounts of one shilling:  Connelly v Sunday Times; a farthing:  Martin v Benson; or a halfpenny:  Pamplin v Express Newspapers Ltd (No 2).   Their Honours concluded that:  “A comparable amount in Australia would be $1.”

On the authorities, Mr Fernando has been short changed in more ways than one?