Australia cannot outsource legal duty on asylum seekers

18th Feb 2014

Australia continues to have a non-delegable duty to people seeking asylum in Australia, the Australian Lawyers Alliance said today.

Following reports of beatings, escapes, and serious injury, including attacks with machetes, the Australian Lawyers Alliance highlighted that Australia has a duty to asylum seekers which appears to be in gross breach.

“A non-delegable duty is one that cannot be outsourced to a third party,” said Greg Barns, barrister and Australian Lawyers Alliance spokesman.

“Certainly, the Agreement between Australia and Papua New Guinea on regional processing appears to indicate that a lot of the dirty work has been outsourced.”

“However, at its core, no matter how many contracts are outsourced, Australia cannot outsource a legal duty.”

Detention centres are funded by Australia, use Australian contractors; and people are screened for health, security and identity checks in Australia before they depart.

“The Australian Government’s own agreement states that: ‘the Government of Australia will conduct all activities in respect of this MOU in accordance with its Constitution and all relevant domestic laws’.”

"When people are injured or die while in detention or jail, government owes them a duty of care."

“No matter what misery and denial of their humanity that asylum seekers are exposed to in detention centres flung around the Pacific, the fact is that there is nowhere Australia can run from its international obligations. Australia will be held accountable in a court of law.”

“The UN, NGOs and other heads of state have heavily critiqued Australia for its broken, dehumanising maritime policy,” said Greg Barns.

“The Courts are yet to become involved on this issue. But it will be a day of reckoning for the Australian government when they do.”

Information released under freedom of information laws to the Australian Lawyers Alliance in 2013 noted that since 2000, more than $27 million had been paid in compensation to persons detained in immigration detention.

“$21 million of this amount was for unlawful detention,” said Greg Barns. “That is nothing compared to the payouts that are to come for those individuals who are subject to institutionalised violence in detention centres that are out of sight of the human eye, but not of the common law.”

“The Government should acknowledge its duty and cease this dehumanising, xenophobic policy now.”

Tags: Compensation Asylum seekers and refugees