Moss Review shows Nauru asylum seekers are our responsibility

20th Mar 2015

The Federal Government’s own review of asylum seekers held in offshore detention centres on Nauru shows that it does have a non-delegable duty of care to people detained and may leave the Commonwealth liable for a swathe of future compensation claims, the Australian Lawyers Alliance (ALA) said today.

The Moss Review, released today by the Department of Immigration and Border Protection, was an investigation into recent allegations relating to conditions and circumstances experienced by asylum seekers held at the Regional Processing Centre in Nauru.

ALA spokesperson Greg Barns said that the Review findings contradicted government claims that it has no responsibility for the care or welfare of asylum seekers once it shipped them from Australian territory to overseas detention centres.

“The Commonwealth may be vicariously liable for any injury sustained by an asylum seeker while being detained,” Mr Barns said.

“When a person is in custody, whether it be in a prison environment or immigration detention, there is an assumption that the entity detaining that person will take reasonable care for their safety,” Mr Barns said.

“The nature of allegations raised in the Moss Review of sexual harassment, rape, trading sexual favours for marijuana and cigarettes and children being touched inappropriately, if proven, show that the Commonwealth has failed in its duty to take reasonable care of asylums seekers.”

Mr Barns said that the review appeared to reveal the underlying role played by the Australian Government in overseeing the Nauru centre. This included a number of issues that have been referred previously to the Department with recommendations and proposals within the report encouraging the Nauru government to implement change.

“The nature of the recommendations appear to indicate the chain of command,” said Mr Barns. “This report may be of significant relevance in considerations of liability in the future, including vicarious liability.”

“Although the centre is based on another nation’s sovereign soil, the review reveals Australia’s level of oversight,” Mr Barns said. “It is questionable as to how such a review can be conducted without recognition of Australia’s liability for the abuses which have allegedly occurred within it.”

Mr Barns said the Commonwealth may have a non-delegable duty of care for asylum seekers in its custody, meaning it could be held legally responsible for any abuse or physical or mental deterioration of people in its care if it could be shown that the abuse occurred while they were in detention.

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 Nauru is an offshore processing centre does not allow the Commonwealth to be able to wipe its hands of liability,” Mr Barns said.

“Detention facilities have been described as ‘hellholes’, with suicide attempts, inadequate sanitation, disease, threats of violence and the tragic death of asylum seekers.”



Tags: Compensation Asylum seekers and refugees Access to justice