Manus Inquiry: Lawyers to give evidence about duty of care

13th Jun 2014

Senior lawyers will give evidence focusing on Australia’s duty of care obligations to asylum seekers, at a Senate Inquiry into the death of Reza Berati on Friday 13 June from 9am – 10.30am at Senate Committee Room 2S3, Parliament House, Canberra.

Dr Andrew Morrison RFD SC, who appeared in the leading case of Shayan Badriae, and barrister Greg Barns, will appear for the Australian Lawyers Alliance before the Senate Legal and Constitutional Affairs Committee in a panel for one and a half hours with representatives from the NSW Law Society and Civil Liberties Australia.

The Australian Lawyers Alliance has submitted that the Commonwealth has a non-delegable duty of care to asylum seekers that continues to exist regardless of where they are being detained.

“The Commonwealth has a legal responsibility for all people in its custody,” said Dr Morrison.

“The common law is clear that whenever people are detained: whether in prisons or detention centres, there is a duty to take reasonable care. That includes a duty to provide adequate care and to protect them from other inmates, from staff and from external threats.”

“On the face of it, there appear to have been serious and significant failures in that duty when it comes to the detention of asylum seekers.”

“Where individuals have been detained extraterritorially, the question is, does that duty still exist?”

“We submit that whether people are deemed asylum seekers, illegal immigrants or transferees, those whom the Commonwealth detains are owed such a duty. Their claims are handled with the supervision, oversight, involvement and at Commonwealth expense and they are clearly owed a duty of care. That must apply wherever Australia chooses to transport and detain them.”

“We submit that this duty of care is non-delegable in nature; a higher duty at common law.”

“Any breach of this duty is serious and merits significant redress.”

“The duty of care owed by the Commonwealth to asylum seekers takes into account the fact that the Commonwealth is effectively acting as a gaoler and that those in its care are particularly vulnerable,” Mr Barns said.

“In 2005, in a case involving detainees at the notorious Baxter detention centre who could not get decent health care treatment from the Commonwealth, Justice Paul Finn acknowledged that asylum seekers in detention cannot provide for themselves or get their own treatment.”

“They are captives of the Commonwealth and so the duty of care owed by the Commonwealth is one that takes that fact into account,” Mr Barns concluded.

Tags: Human rights Asylum seekers and refugees