Govt’s Migration ‘loophole’ Bill incompatible with current law

30th Jun 2015

New legislation passed by the Parliament last week to evade High Court litigation regarding the validity of regional processing centres is incompatible with Australia’s obligations at law, which it cannot contract or legislate away, the Australian Lawyers Alliance (ALA) said today.

The government’s Migration Amendment (Regional Processing Arrangements) Bill 2015, supported by Labor, sought to close a ‘loophole’ in existing legislation and authorises payments made to establish and operate offshore detention centres on both a prospective and retrospective basis.

ALA spokesperson Dr Andrew Morrison SC said that under existing law this new legislation could not absolve the government of responsibility to asylum seekers being held in regional detention centres.

“The Department of Immigration and Border Protection and Comcare have both held that Australian work, health and safety legislation continues to apply in regional processing centres,” Dr Morrison said.

“Further, the manner of control exercised by the Australian government in relation to the centres, and the vulnerability and dependence of the people detained within them, is factually typical of a non-delegable duty of care. This is the highest legal responsibility that exists in case law. It cannot be contracted out of, and it cannot be legislated away.”

“The Commonwealth has already acknowledged that it has a non-delegable duty of care to provide reasonable healthcare to detainees under its care,” Dr Morrison said. “It is a simple additional step to find that a non-delegable duty of care exists to exercise reasonable care for the safety of detainees, and to ensure that reasonable care is taken.”

Dr Morrison said that the findings of the Moss Review, as well as the ‘Open Letter to the Australian People’, appeared to indicate that the Australian government had not ensured that reasonable care had been taken for the safety of detainees. 

“If recognised by the High Court, the duty would remain, and exist, regardless of what governments or legislation may come and go,” Dr Morrison said. “A breach of that duty, which leads to injury, could be the grounds upon which many people will sue the Commonwealth for damages in years to come.”

“While the issue of a non-delegable duty of care in relation to immigration detention centres has not yet been resolved at a High Court level, in the event that this form of action were to come before the Court, there is no legislation that could save any government from its ambit,” Dr Morrison said.

“The Australian Lawyers Alliance believes that Comcare is mandated to investigate the conditions for workers and detainees in regional processing centres in Papua New Guinea and Nauru. We believe that Comcare should investigate the centres and make findings regarding physical and psychological health of both detainees and workers.”

“We also believe that any efforts undertaken by the Parliament to circumvent the Commonwealth’s legal obligations should be recognized by the Australian community as abhorrent,” Dr Morrison said.

“We believe that any effort undertaken by the Parliament to shift the burden of responsibility to contractors, or to the countries in which people are detained, is invalid. We believe that the Commonwealth of Australia has a non-delegable duty to people detained in the detention centres over which Australia has managerial and financial control.” 

Tags: Migration law Asylum seekers and refugees Comcare