Detainee abuse letter: Evidence of Govt’s breach of duty of care?
8th Apr 2015
A letter alleging that the Australian Government knew children were suffering sexual abuse at the Nauru detention centre is stunning first evidence that the government may have failed to protect detainees from harm, the Australian Lawyers Alliance (ALA) said today.
The letter, written by 23 former and current teachers, social workers and child protection staff who previously worked at the Nauru detention centre, was released publicly today and called for the removal of all asylum seekers from the island to Australia.
ALA spokesperson Greg Barns said that if a private sector employer failed to protect individuals in a manner similar to that which the government is alleged to have done, it would be prosecuted and face a massive damages claim.
“This letter is a stunning development because it constitutes the first direct evidence that the Commonwealth, with knowledge of the physical and mental harm being caused, did not take the appropriate steps to protect individuals from that harm,” Mr Barns said.
“There is the distinct possibility that the courts could view this as a clear breach of the non-delegable duty of care owed by the Commonwealth to detainees.”
“We also call on Comcare, which has a responsibility to ensure Commonwealth workplaces are safe for workers and detainees, to immediately investigate the matter,” Mr Barns said.
“If an employer in the private sector failed, after being warned by professional advice, to take steps to protect employees or others who come onto the workplace, then they would be prosecuted.”
Mr Barns said the findings of the Moss Review into detainee conditions contradicted government claims that it has no responsibility for the care or welfare of asylum seekers once it shipped them from Australian territory to overseas detention centres.
“The Commonwealth may be vicariously liable for any injury sustained by an asylum seeker while being detained,” 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.”
“The nature of allegations raised in the Moss Review of sexual harassment, rape, trading sexual favours for marijuana and cigarettes and children being touched inappropriately, if proven, show that the Commonwealth has failed in its duty to take reasonable care of asylums seekers,” Mr Barns said
Mr Barns also said that recent findings from the Australian Human Rights Commission’s report, The Forgotten Children, showed that the Commonwealth could face huge compensation claims in court from individuals held in detention.
“The evidence is clear that children in detention have been assaulted and abused while in the care of the Australian government, and that many of these children have subsequently developed serious mental issues,” Mr Barns said.
“Independent, verifiable, categorically clear evidence has been provided by doctors and other trained medical professionals that children in detention are suffering horrendously.”
“It is clear that detention is damaging to children and is contributing to psychological injury. It doesn’t matter if there are 200 or 10 children in detention. Any more than zero continues to be too high in an environment that is toxic to their development and growth,” Mr Barns said.
“How that toxicity of detention centres to children will be handled by the courts in future years remains to be seen.”
The Australian Lawyers Alliance previously submitted to the Senate Legal and Constitutional Affairs References Committee that Australia may have a non-delegable duty of care under common law to ensure the safety of asylum seekers at held at the centre.
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).
“The fact that Manus Island is an offshore processing centre does not allow the Commonwealth to be able to wipe its hands of liability,” Mr Barns said.