Commonwealth could be liable for detainee declared brain-dead

3rd Sep 2014

The Commonwealth could be liable for an asylum seeker declared as brain dead following detention on Manus Island, the Australian Lawyers Alliance (ALA) said today.

According to reports, the 24 year-old Iranian asylum seeker was declared brain dead after developing septicaemia while he was being kept in the Manus Island detention centre.

ALA spokesperson Greg Barns said the Commonwealth had a non-delegable duty of care for asylum seekers in its custody, meaning it could be held legally responsible for the man’s death if it could be shown that his condition developed while in detention.

“If this man’s condition developed or worsened while he was a detainee on Manus Island, then the Commonwealth could be liable for his death,” Mr Barns said. 

“When a person is in custody, whether it be in a prison environment or immigration detention, there is an assumption that the entity detaining that person will take reasonable care for their safety during that time.”

“Certainly, failing to provide medical treatment for septicemia does not correlate with taking reasonable care.”

Mr Barns said the Federal Government’s treatment of asylum seekers breached several international treaties, including the International Covenant on Civil and Political Rights (1966)[1] and United Nations regulations on the Standard Minimum Rules for the Treatment of Prisoners (1955)[2].

“Australia may have a non-delegable duty to people seeking asylum in Australia. It’s time the Government faces up to this and the obligations that this creates regarding the quality of detention facilities and the safety of detainees from harm and injury, Mr Barns said.

“There may be a non-delegable duty of care on the part of the Commonwealth to take reasonable care in exercising the powers of control and direction of people who are in detention to ensure that they are not injured.” Mr Barns said.

“The Commonwealth does not cease to be responsible for detainees in its custody by contracting a third-party organisation to run detention facilities.

“Regardless of whether the fault was that of the Commonwealth or of another party running the facility, the Commonwealth may be liable for any injury sustained by an asylum seeker while being detained,” Mr Barns said.

“The fact that no asylum seekers have been sent to Manus Island since February 2014 – the period in which Mr Berati was injured and killed – and that asylum seekers are now being moved from Manus Island to Nauru following this recent report of a young man left brain dead by departmental inaction, reveals that the Commonwealth is perhaps taking note of its tenuous legal position.”