Manus Inquiry: Lawyers' evidence given
16th Jun 2014
On Friday 13 June, representatives of the Australian Lawyers Alliance appeared before the Senate Legal and Constitutional Affairs Committee in their inquiry into the incident at Manus Island that led to the tragic death of Mr Berati.
Dr Andrew Morrison RFD QC and barrister and former Australian Lawyers Alliance National President Greg Barns, appeared before the inquiry for one and a half hours to speak about Australia's duty of care obligations at common law.
Dr Morrison and Mr Barns gave evidence as to the special nature of the duty of care to people in detention, as identified in the High Court case of NSW v Bujdoso. They further elaborated that this duty may be characterised as a high duty of care: a non-delegable duty.
Mr Barns said: 'It is a fact that the Commonwealth has its own officials in each of those centres and that they tend to have very senior roles. The fact that it is an offshore processing centre does not allow the Commonwealth to be able to wipe its hands of liability. It may be that liability is shared with the government of Papua New Guinea or with a service provider, but it does not simply mean that, because you are offshore, you can sheet home responsibility to another party.'
The full transcript can be accessed here.
''The Commonwealth, by employing an organisation such as G4S... does not cease to be responsible...
We would apprehend that there would be rights both under Australian law and under PNG law in respect of injuries, whether to detainees or to staff. If the Commonwealth government chooses to detain offshore, then its obligations continue. It does not avoid those obligations by employing a provider or by virtue of the fact that it is on another country's sovereign territory. It is also worth noting that the department has its own representatives present in a supervisory role, so it hasn't fully delegated responsibility to G4S in any event.''
- Dr Andrew Morrison RFD SC
"People who are in detention do not have an autonomous existence; they are subject to control and direction. Therefore, those who detain them have to ensure that they are protected from any violence by third parties, such as other detainees or security officers or anyone else in the detention centre. And there is a duty on the part of the Commonwealth to take reasonable care in the exercise of the powers of control and direction of people who are in detention to ensure that they do not get injuries. This is particularly relevant in relation to Manus Island and the Manus Island incident."
- Greg Barns, barrister
The ALA's submission can be viewed on our website here.
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The Senate Committee will release their Inquiry Report on 16 July 2014. The Senate Inquiry website can be accessed here. You can follow the discussion on Twitter @AustLawAlliance and at #manusinquiry.