Renewed focus on access to remedy for business related human rights abuses has drawn attention back to jurisdictions that have developed a body of jurisprudence which, to varying degrees, will allow domestic courts to accept jurisdiction over claims where extraterritorial human rights violations are framed as civil suits and brought against a corporate actor in its home jurisdiction.

The Australian jurisdiction has a number of features which make it an attractive, and peculiarly permissive, jurisdiction in which to pursue such claims. Australia departs from most common law jurisdictions with respect to its rules on the doctrine of forum non conveniens, prescribing that cases will only be stayed if Australia is a ‘clearly inappropriate forum’. This test is restrictive and in practical terms, a stay would only be successful where to allow the trial to continue in Australia ‘would be productive of injustice, … oppressive in the sense of seriously and unfairly burdensome, prejudicial or damaging, or vexatious, in the sense of productive of serious and unjustified trouble and harassment’

Australian courts have the authority to hear cases involving damage suffered partly within the jurisdiction in respect of a tort, wheresoever occurring, and permit service out of the jurisdiction in compliance with their respective court rules. The nexus requirements are interpreted leniently.

Further, foreign corporations are susceptible to the exercise of personal jurisdiction where they conduct business in Australia. Australian courts have taken a particularly permissive approach to establishing presence in the jurisdiction, and in practice it is not a significantly high threshold to overcome.

Australian courts have displayed willingness to apply foreign law, and although Australian law uses a strict lex loci delicti rule, claimants are afforded some flexibility in the way in which they plead their claims.

Although there is no direct cause of action for egregious violations of human rights standards, private causes of action based on human rights violations may be framed in tort whether as negligence, trespass, assault and battery or wrongful imprisonment claims. Class action suits are available and use an ‘opt out’ mechanism.

The sum of these parts is a jurisdiction peculiarly receptive to transnational human rights litigation framed in tort. Despite this, there have been a limited number of transnational human rights claims that have been brought in Australia, largely due to significant barriers concerning matters of funding and costs.

Kamasaee v Commonwealth (‘Kamasaee’) is the first claim to test the Australian jurisdiction as a forum for transnational human rights litigation against a corporate defendant in 17 years, and the only claim of its nature be brought in the era of the UNGPs. The claim was a class action suit brought in the Supreme Court of Victoria against the Commonwealth of Australia and two corporate contractors, G4S and Transfield, who operated and provided services to the immigration detention centre on Manus Island (‘the Centre’) as part of Australia’s offshore detention regime.

The claim alleged that the defendants repeatedly breached a duty of care owed by them to asylum seekers detained in the Centre by failing to provide adequate food, water, shelter, medical care and security.

The poor living conditions at the Centre are well documented, including by the Australian Human Rights Commission, Australian Senate Committee reports, independent reports, UN bodies and by NGOs and grassroots campaigns. These conditions have been alleged to contravene international human rights standards, to constitute crimes against humanity, and have been the subject of referrals to the ICC.

On 7 June 2017 a settlement deed was signed by the parties agreeing to settle for the sum of AUD70 million plus costs estimated at AUD20 million, believed to be the largest human rights class action settlement in Australian history. While the size of the settlement is undoubtedly substantial, many of the detainees who comprise the plaintiff group remain in a state of legal limbo as their resettlement prospects continue to be uncertain. Following the closure of the Centre on 31 October 2017, the detainees remaining in PNG continue to be exposed to threats against their security, psychological trauma, poor medical care and indefinite detention.

Kamasaee raises real questions about the viability of litigation and financial compensation to provide adequate remedy for rights-holders who have had their human rights impacted by corporate actors.

The claim draws out the tensions between the pillars that comprise the tripartite UNGPs framework and lays bare the particular difficulty that arises when a government is a co-defendant to a claim against its corporate contractors. Where the subject of such a claim directly concerns acts done by those corporate contractors in discharge of government policy, and where, as here, damages are an inadequate remedy to wholly address the wrongs done to members of the claimant group who remain detained, effective remedy cannot be achieved without state action. What Kamasaee makes clear is that although transnational tort claims remain a critical avenue for obtaining remedy for breaches of human rights standards engaged in by corporate actors, without the fulfilment of the state duty to protect human rights enshrined in the first pillar of the UNGPs, such claims are not capable of providing effective remedy as understood in the UNGPs framework.

In the wake of the Manus settlement, two further class actions have been brought against the Australian Government by the National Justice Project alleging that the government has breached its duty of care to those held in offshore detention on Manus and Nauru. The claims allege that subjecting detainees to the detention conditions constitutes crimes against humanity, in the forms of torture and other inhumane acts within the meaning of Division 268 of the Criminal Code Act 1995 (Cth). The claims seek injunctive relief as well as damages. Recently, there has also been a groundswell of activism in Australia against companies who profit from the conduct of Australia’s privatised offshore detention centres and renewed scrutiny of the contracts awarded to the contractors who provide services in support of the offshore detention regime.

Framing human rights abuses as tort claims is a necessarily imperfect process and will never mirror precisely the wrong done to an affected party as a result of a violation of their international human rights. However, in the absence of effective mechanisms that may facilitate access to remedy beyond existing judicial mechanisms, transnational human rights litigation, framed in tort, remains a powerful means of providing redress for such wrongs and potentially applying pressure on states to comply with their obligation to protect human rights. Australia remains a viable jurisdiction in which such claims may be pursued.

For a more in depth discussion of the case and its implications, see Gabrielle Holly, “Transnational Tort and Access to Remedy under the UN Guiding Principles on Business and Human Rights: Kamasaee v Commonwealth” 19(1) Melbourne Journal of International Law 52-83

 

Gabrielle Holly is a business and human rights specialist and an experienced commercial disputes lawyer currently practicing at Omnia Strategy LLP.

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