Failure to provide abortion to rape victim a new low in detainee care

19th Oct 2015

The Commonwealth appears to have failed in its duty of care to a 23-year-old detainee rape victim, by neglecting to provide appropriate medical counselling and advice before denying her an abortion, the Australian Lawyers Alliance (ALA) said today.

Somali detainee Abyan begged authorities to fly her to Australia for medical treatment and an abortion after she was raped while detained on Nauru. However she was flown back to Nauru without receiving the abortion, with the Commonwealth alleging she refused the procedure.

ALA spokesperson and barrister Greg Barns said even by its own account the Commonwealth had failed its basic non-delegable legal responsibility to provide reasonable medical care to Abyan.

“This case has seen the mistreatment of detainees while in the custody of the Commonwealth sinking to a new low,” Mr Barns said.

“The courts have clearly stated, and the Australian government has accepted, that the Commonwealth owes a duty of care to a person held in detention to provide them with a level of medical care which is necessarily designed to meet their health care needs, including psychological care.”

“A very basic component of providing medical care for abortion after suffering a traumatic rape would constitute, at the very minimum, counselling and an interpreter. This was not provided,” Mr Barns said.

“Patients also must be provided with an appropriate amount of information before making decisions regarding medical treatment, in order that it is an informed choice.”

Mr Barns said that several court decisions, including AS vs Minister for Immigrations and Border Protection and Anor [2014] VSC 593 and MZYYR v Secretary, Department of Immigration and Citizenship [2012] FCA 694 clearly stated that the Commonwealth owes a duty of care to a person held in detention to provide them with a reasonable level of medical care.

Further duties of care exist at statute, given that all Australian immigration detention centres, including those on Nauru and Manus Island, constitute Commonwealth workplaces.

“Under the Work Health and Safety Act, the Commonwealth has the duty to ensure the health and safety of workers, contractors and people detained in Australian facilities,” Mr Barns said.

“It would be appropriate for Comcare to consider whether this duty has been appropriately discharged in this case, and whether this duty is being discharged appropriately generally in the regional processing centres in Nauru and Manus.”  

“Over the past two years, we have had the Moss review, the Senate inquiry into the conditions and circumstances on Nauru. There has been the rape of a Manus Island worker, allegedly by Australian staff, and there have been two preventable deaths in detention,” Mr Barns said.

“If this was any other type of Australian institution, it would have been closed long ago.”

“This is an appalling track record. When is enough, enough?” Mr Barns said.

“If the Commonwealth is unable to discharge its legal responsibilities, that is substantial cause enough to consider the feasibility of such centres.”

Mr Barns said the Commonwealth needed to come clean on its role in the treatment of detainee victims of abuse, and to step up to its mandated duty of care responsibilities, or face the legal consequences.

“The Commonwealth is on borrowed time when it comes to its responsibility for the abuse of people being held in detention,” Mr Barns said.

“The human rights abuses occurring on Nauru and Manus Island will eventually come before the courts – in fact some cases are now in the process of being heard.”

“It is only a matter of time before the Commonwealth must acknowledge its role in these affairs and is held accountable for what it has, or what it ought to have, done.” 

Tags: Human rights Asylum seekers and refugees Access to justice Comcare