Govt knowledge of security breaches may strengthen claims
13th May 2014
Revelations that the Commonwealth knew of security flaws at Manus Island may strengthen claims by asylum seekers who have suffered injuries as a result of security breaches, the Australian Lawyers Alliance said today.
“With reports that government knew months ago of urgent security breaches, there is less likelihood that the government can palm off liability to third parties,” said Geraldine Collins, National President of the Australian Lawyers Alliance.
“This would include security contractors or companies that operate the detention centres.”
“It is evident that the Australian government knew of the risks, and failed to address them in a reasonable period of time.”
“Despite being offshore, the Manus Island detention centre remains the responsibility of the Australian government. The Australia government arranges for its financing, management, staffing, contracting.”
“As more facts about the terrible conditions in the detention centre come to light, the liability of the Australian government should also come into question.”
“The Australian Lawyers Alliance believes that the Australian government may have a non-delegable duty of care to asylum seekers imprisoned in offshore detention centres funded by the Australian taxpayer.”
“Make no mistake: if what was happening in Manus happened on Australian soil, this would be patently unacceptable.”
“The question that the government should be facing is: what will we do if and when the courts decide that we have the same responsibility on Manus as we do in Australia?”
“In 2003, the High Court, in the landmark decision of NSW v Lepore, held that the Commonwealth government owes a non-delegable duty to detainees in immigration detention. Furthermore, the Commonwealth can be held liable for ‘the negligence of others who are engaged to perform the task of care for a third party - no matter whether the person engaged to provide the care is a servant or an independent contractor.’
“The current situation would appear to trigger a similar legal response,” said Ms Collins.
“It is well established in Australian case law that prison authorities owe a duty to take reasonable care of people that are kept in detention.”