Govt treatment of Manus detainees could be found negligent

12th Dec 2014

The Manus Island Report shows clearly that the Australian Government may have breached its duty of care to deceased detainee Reza Berati and could be found negligent for its treatment of asylum seekers detained on Manus Island, the Australian Lawyers Alliance (ALA) said today.

The report released yesterday by the Senate Legal and Constitutional Affairs References Committee, called on the Australian government to acknowledge its responsibility to respect, protect and fulfil the human rights of individuals detained at the Manus Island Regional Processing Centre.

ALA spokesperson and Barrister Greg Barns said that the report’s finding that the violence, which resulted in the death of detainee Mr Berati, was ‘eminently foreseeable’ was significant as this concept is one of the core tenets of establishing negligence.

“The Manus Island report indicates that the Australian government is one step closer to being found negligent in the way it has treated asylum seekers on Manus Island,” Mr Barns said.

“The finding that the violence on Manus Island was ‘eminently foreseeable’ is significant, as this concept is one of the core tenets of establishing negligence.

“Foreseeability forms part of the essential legal tests required to prove negligence. Ultimately, it will be for the courts to establish whether the remaining legal tests for negligence have been met.”

“Significantly, the Committee has also stated that it considers that the duty of care responsibilities that the Australian government owes under domestic Australian law are a compelling reason for Australia to take full responsibility for the treatment of asylum seekers held at Manus Island.”

The Australian Lawyers Alliance submitted to the 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.

“This contrasts with the position of the Department of Immigration and Border Protection, who acknowledged to the committee that the nature or scope of a duty of care in the regional processing context, and whether it exists, is a complex question that normally involves judicial evaluation,” said Mr Barns.

“Clearly, the Committee is pointing to our own domestic protections at common law, and saying ‘watch your step’.”

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].

“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.

The ALA’s submission to the inquiry highlighted its belief that the Australian government has a non-delegable duty of care existing at common law to those imprisoned in detention centres offshore; that the powers of the Australian government acknowledged within the original Agreement with Papua New Guinea indicate that Australia is the true authority bound by a common law duty of care owed to prisoners that are detained, and not PNG; and that the Australian government may be held vicariously liable for any failure to take reasonable care, undertaken via the use of services of contractors.

Mr Barns welcomed the strong recommendations of the Senate Legal and Constitutional Affairs Committee that the Australian Government acknowledge its responsibility to respect, protect and fulfil the human rights of individuals detained at the Manus Island Regional Processing Centre.

“The Australian Lawyers Alliance welcomes the recommendations that the government take responsibility to protect, respect and fulfil the rights of detainees held on Manus Island,” Mr Barns said.

“We also welcome the recommendation that the government provide adequate medical assistance and independent legal advice to people affected, and that it pay compensation to the family of Reza Berati and others affected by the violence.”

“We look forward to the expeditious commitment by the Australian Government to put these recommendations into action as an immediate priority,” Mr Barns said.

 “Regardless of whether the fault was that of the Commonwealth or of another party running the facility, the Commonwealth may be vicariously 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.”


The ALA's submission can be viewed on our website here.

The full transcript of the ALA’s evidence to the Inquiry can be accessed here.




Tags: Human rights Asylum seekers and refugees Access to justice