Manus Island negligence may have financial costs
Posted
It's highly likely that the Australian
Government's non-delegable duty of care towards asylum seekers is being
breached daily, leaving taxpayers exposed to massive liability, write
Andrew Morrison and Greg Barns.
When things go sour Government's non-delegable duty of care towards asylum seekers is being
breached daily, leaving taxpayers exposed to massive liability, write
Andrew Morrison and Greg Barns.
at the Manus Island and Nauru detention centres, the Commonwealth
Government likes to distance itself from liability for wrongs that may
have been committed by contractors who work at these centres. Such an
approach is inconsistent with the law around what is called
non-delegable duty of care.
The law in Australia is that the
Commonwealth Government owes a non-delegable duty to detainees in
immigration detention and the Commonwealth can be held liable "for the
negligence of others who are engaged to perform the task of care for a
third party - no matter whether the person engaged to provide the care
is a servant or an independent contractor," as the High Court stated in a
landmark 2003 decision called NSW v Lepore.
In the context of
harm that occurs to detainees in immigration detention, this means that
if the Commonwealth engages contractors such as security companies like
G4S, NGOs or medical professionals, then if any of those contractors is
negligent in carrying out its duties and detainees suffer mental or
physical harm or both, the detainees may have a cause of action against
the Commonwealth.
To provide an example: if a detainee suffers
mental and physical injuries as a consequence of being assaulted by
other detainees or staff at the centre as a result of the company
running the detention centre being negligent in how it ensured the
safety of detainees by allowing an assault to take place, then that
detainee can sue the Commonwealth Government for compensation. Or if the
health care delivered by health professionals engaged by the
Commonwealth fails to deliver adequate care to a detainee and he or she
suffers an injury, then he or she will have a cause of action against
the Commonwealth.
The fact that Manus Island and Nauru are
offshore locations does not, in our view, mean that the Commonwealth is
off the hook. Both of these centres are run by the Commonwealth
Government. The Commonwealth's contract with G4S which has run Manus
Island - although Transfield, a logistics company, will take over the
operation shortly - refers to the Department of Immigration asking G4S
to provide "operational and maintenance services" with respect to people
being transferred to a regional processing country, Papua New Guinea.
Similarly in Nauru it is the Australian Department of Immigration that
contracts out services and security to private contractors and NGOs.
The
relevance of reminding the present Federal Government and its
predecessors (now in opposition) of this is that the Australian taxpayer
is potentially exposed to massive liability if there are claims made by
detainees over the next few years. The fact that, as revealed in PNG's
inquiry into the Manus Island detention centre headed by Justice David
Canning, bread is often riddled with worms, or that, as a former
Salvation Army worker revealed this week, suicide and self-harm attempts
are made on a daily basis in Nauru, means that it is highly likely the
non-delegable duty of care the Commonwealth owes to detainees in those
centres is being breached on a regular basis.
The Commonwealth sets and purports to maintain and
supervise written detention standards. It has its own staff present for
this purpose at both Nauru and Manus Island. It is worth noting that the
Commonwealth Government may also be directly negligent if there is a
clear breach of its own written detention standards, which those
supervising knew or should have known about.
There have in fact
been successful claims made by asylum seekers who have been subjected to
the most appalling mistreatment by Canberra and its agents over the
years. In 2005 Justice Paul Finn of the Federal Court ruled that the
Commonwealth's non-delegable duty of care owed to detainees at the
Baxter detention centre in South Australia meant it was liable for the
mental illness these men suffered as a consequence of grossly inadequate
medical care. The Australian Lawyers Alliance has obtained figures from
the Commonwealth Department of Finance that show $7 million has been
paid out in claims by Canberra since 1999 to asylum seekers who have
brought claims based on negligence and other breaches of duty by the
Commonwealth while they were in detention.
By all reliable
accounts, such as the recent United Nations Commissioner for Refugees
report, released in November last year, the physical conditions and
quality of 'care' provided to detainees on Manus Island and Nauru is
well below international and Australian human rights standards for
individuals who are detained by governments. This makes it highly likely
that the Commonwealth's non-delegable duty of care is being breached
daily and is potentially costing this nation millions of dollars in
compensation claims.
What is also disturbing is that the present
Federal Government and its predecessors have such an insouciant attitude
towards that non-delegable duty of care. We never hear Immigration
Minister Scott Morrison talk about how seriously he and his colleagues
in the Abbott Government take their duty of care to ensure the safety of
detainees on Manus Island or Nauru. In fact, one gets the impression
that Mr Morrison couldn't give a fig about such an important legal
concept - he wants to make Manus Island and Nauru sound like hellholes
so as to deter asylum seekers from hopping on leaky boats.
Dr
Andrew Morrison SC is a member of the New South Wales Bar who has
appeared in a significant number of cases against institutions in
respect of sexual abuse of children. View his full profile here.
He is a spokesperson for Australian Lawyers Alliance. Greg Barns is a
member of the Tasmanian Bar and a spokesperson for the Australian
Lawyers Alliance. View his full profile here.
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