Sending kids to offshore immigration detention will breach WH&S laws

3rd Feb 2016

Any decision to send the children of asylum seekers to offshore detention from the Australian mainland would constitute a breach of the Immigration Minister’s duty of care as well as the Commonwealth’s own Workplace Health & Safety laws, the Australian Lawyers Alliance (ALA) said today.

The full bench of the High Court today ruled that the federal government has the power under the Constitution to detain people in other countries, finding that the conduct was within the law.

ALA spokesperson and barrister Greg Barns said that High Court decision has yet again demonstrated that the rights of vulnerable people in Australia are not protected by current laws.

“If the Australian government returns the children to Manus Island it is doing so knowing full well that the Commonwealth is liable for any harm which happens to those children,” Mr Barns said.

“The Commonwealth is sending these children to a place it knows will cause them harm - there is uncontested medical evidence that to place a child into detention causes that child mental and physical harm.”

“It could be argued that for the Commonwealth to send children to Nauru on the basis of this ruling would amount to a breach of the duty of care of Immigration Minister Peter Dutton to ensure the physical and mental wellbeing of those children,”

“It is also arguable that such conduct would amount to a breach of the Commonwealth Workplace Health & Safety Act.”

Mr Barns said the Workplace Health & Safety Act makes it an offence to allow persons to be present in unsafe workplaces, irrespective of whether those persons are visitors, residents or workers.

Mr Barns said that the Australian Lawyers Alliance was extremely disappointed with the High Court rejection of the challenge to the offshore detention laws, and that if this challenge had been brought in a jurisdiction with robust human rights laws it is highly likely that it would have been successful

“The reality is that offshore detention is a gross breach of Australian international human rights obligations and is also a breach of the international refugee laws and standards,” Mr Barns said.

“The decision of the High Court does not in any way shape or form change that.”

“The decision of the High Court yet again demonstrates that vulnerable persons in Australia do not have their rights protected by current laws,” Mr Barns said.

“If this challenge had been brought in a jurisdiction with robust human rights laws such as Canada it is highly likely this challenge would have been successful.”