Australia's human rights obligations and duty of care responsibilities
The committee's terms of reference included consideration of the
Australian Government's duty of care responsibilities in relation to the Manus
Island Regional Processing Centre. This chapter addresses both Australia's
obligations under international human rights law and duty of care
responsibilities under domestic law, including consideration of:
Australia's obligations under international human rights law
including their content and scope both within and outside of Australia;
whether Australia's obligations under international law apply in
respect of asylum seekers detained in the Manus Island RPC;
Australia's compliance with its human rights obligations in
respect to the incident from 16 February to 18 February 2014; and
Australia's duty of care responsibilities under domestic law and
Australia's international human rights obligations
This section sets out the content, scope and application of Australia's
obligations under international human rights law in relation to the incident at
the Manus Island RPC from 16 to 18 February 2014.
Source of Australia's human rights
Australia has voluntarily accepted international obligations under a
number of international human rights treaties. These include the:
Convention on the Status of Refugees (Refugee Convention);
International Covenant on Civil and Political Rights (ICCPR);
International Covenant on Economic, Social and Cultural Rights (ICESCR);
International Convention on the Elimination of All Forms of
Racial Discrimination (CERD);
Convention on the on the Elimination of All Forms of
Discrimination against Women (CEDAW);
Convention against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment (CAT);
Convention on the Rights of the Child (CRC); and
Convention on the Rights of Persons with Disabilities (CRPD).
Under these treaties, states have an obligation to ensure that persons
enjoy human rights. Australia's obligations under international human rights
law as contained in these treaties are threefold:
to respect – requiring government not to interfere with or limit
to protect – requiring government to take measures to prevent
others (for example individuals or corporations) from interfering with human
to fulfil – requiring government to take positive measures to
fully realise human rights.
Content of Australia's human rights
Australia has a range of specific obligations under the above human
rights treaties, including in relation to the treatment of refugees and asylum
seekers. Some of these obligations, such as those contained in the Refugee
Convention, are aimed at addressing the specific situation of asylum seekers
and refugees, while others are of more general application.
Obligations that are specifically relevant to the committee's inquiry
into events at the Manus Island RPC are as follows.
The Refugee Convention and Refugee
Status Determination (RSD)
A person who has refugee status or satisfies the definition of 'refugee'
is entitled to a range of specific rights under the Refugee Convention. These
rights include, for example, the right not to be expelled (article 32), the
right to freedom of movement within the territory (article 26), the right to
public relief and assistance (article 23), the right to be issued identity and
travel documents (articles 27 and 28) and an obligation of non-refoulement
Further, individuals have a right to seek asylum and a right not to be punished
for any illegal entry into Australian territory in order to seek asylum (article
Specific obligations in relation to refugee status determination processes have
already been noted in chapter 4.
One of the fundamental obligations under international human rights law
is the obligation of non-refoulement. Australia has non-refoulement obligations
under the Refugee Convention and under both the ICCPR and the CAT. This means
that Australia must not return (refoule) an individual to a country where there
is a real risk that they would face persecution, torture or other serious forms
of harm, such as the death penalty; arbitrary deprivation of life; or cruel,
inhuman or degrading treatment or punishment.
Non-refoulement obligations are absolute and may not be subject to any
Human rights law requires provision of an independent and effective
hearing to evaluate the merits of a particular case of non-refoulement.
Equally, the provision of 'independent, effective and impartial' review of
non-refoulement decisions is integral to complying with non-refoulement
obligations under the ICCPR and CAT.
Torture, cruel, inhuman or
degrading treatment or punishment
Article 7 of the CAT provides an absolute prohibition against torture as
well as cruel, inhuman or degrading treatment or punishment. This means that torture
and cruel, inhuman or degrading treatment or punishment cannot be justified
under any circumstances. The aim of the prohibition against torture is to
protect the dignity of the person, and in substance it relates not only to acts
causing physical pain but also to acts that cause mental suffering. Prolonged
indefinite detention without charge has been found to breach the prohibition on
torture or cruel, inhuman or degrading treatment.
The Andrew & Renata Kaldor Centre for International Refugee Law (Kaldor Centre)
explained that, with reference to this prohibition, Australia is obliged not
only to prohibit such treatment but also to take positive steps to prevent such
treatment. This includes obligations:
to educate and inform persons responsible for detention of the
prohibition against torture or other cruel, inhuman or degrading treatment;
to include the prohibition in any rules or instructions issued to
to keep under systematic review arrangements for the custody and
treatment of those detained with a view to preventing such treatment;
to ensure authorities conduct a prompt and impartial
investigation whenever there is reasonable ground to believe such treatment has
to ensure that individuals alleging such ill-treatment have the
right to complain to, and have the case promptly and impartially examined by,
competent authorities, including protection of the complainant and witnesses
from ill-treatment or intimidation as a consequence of any evidence given.
In addition, as noted above, Australia is under an obligation to ensure
that it does not send a person who is in Australia to a country where there is
a real risk of torture or cruel, inhuman, degrading treatment or punishment
(non-refoulement obligations). Additionally, article 10 of the ICCPR provides
that all persons in detention must be treated humanely.
Prohibition against arbitrary
Article 9 of the ICCPR provides that no-one may be subjected to
arbitrary arrest or detention, or deprived of liberty except on such grounds
and in accordance with such procedures as are established by law. Article 9 of
the ICCPR applies to all deprivations of liberty and is not limited to criminal
cases. Detention must not only be lawful but also be reasonable and necessary
in all the circumstances. The principle of arbitrariness includes elements of
inappropriateness, injustice and lack of predictability.
The only permissible limitations on the right to security of the person
and freedom from arbitrary detention are those in accordance with procedures
established by law, provided that the law itself and the enforcement of it are
The UN Human Rights Committee has held in a number of cases, including cases
brought against Australia, that prolonged mandatory detention of asylum seekers
may violate the prohibition against arbitrary detention.
Right to security of the person
The right to security of the person is protected under article 9(1) of
the ICCPR, and requires Australia to take steps to protect people against
interference with personal integrity by others. This includes protecting people
who are subject to death threats, assassination attempts and harassment and
Right to life and the duty to
The right to life is protected by article 6(1) of the ICCPR and article
1 of the Second Optional Protocol to the ICCPR. The right to life has the
following three core elements:
it prohibits the state from arbitrarily killing a person;
it imposes an obligation on the state to protect people from
being killed by others or by identified risks; and
it requires the state to undertake an effective and proper
investigation into all deaths where the state is involved (duty to investigate).
The right to health
Article 12 of the International Covenant on Economic Social and Cultural
Rights (ICESCR) recognises 'the right of everyone to the enjoyment of the
highest attainable standard of physical and mental health', and requires steps
to be taken to achieve the full realisation of this right.
Right to an effective remedy
Article 2 of the ICCPR requires states to ensure access to an effective
remedy for violations of human rights. States are required to establish
appropriate judicial and administrative mechanisms for addressing claims of
human rights violations under domestic law. This includes the establishment of
mechanisms to ensure the prompt, thorough and effective investigation of
alleged violations by independent and impartial bodies.
Article 2 also requires that states are required to make reparation to
individuals whose rights have been violated. Reparation can involve
restitution, rehabilitation and measures of satisfaction—such as public
apologies, public memorials, guarantees of non-repetition and changes in
relevant laws and practices—as well as bringing to justice the perpetrators of
human rights violations.
The right also involves a duty to prevent recurrences of violations,
which may require measures effecting changes to institutions, laws or
Scope of Australia's human rights
obligations in and outside of Australia
Australia's human rights obligations apply to all people subject to
Australia's jurisdiction, regardless of whether they are Australian citizens.
This means Australia owes human rights obligations to everyone in Australia, as
well as to persons outside Australia over whom Australia is exercising
'effective control', or who are otherwise under Australia's jurisdiction.
The 'effective control' test in international law is essentially one of
sufficient control. Therefore, whether Australia is exercising sufficient
control and authority to amount to 'effective control' is a question of fact
and degree in the particular circumstances.
The Australian Government has accepted that it has human rights obligations to
persons outside its territory in circumstances where it exercises effective
control over those persons.
'Effective control' by Australia does not preclude the possibility of the
joint or concurrent responsibility of another state in relation to conduct that
occurs on the latter's territory.
Under the international law of state responsibility, Australia will be liable
for internationally wrongful acts which are attributable to it, or where it
aids or coerces another state to commit an internationally wrongful act.
As noted above, under international human rights law Australia also has
specific obligations with respect to the transfer of persons to another country
where there is a real risk of them suffering particular human rights violations
(non‑refoulement obligations). It should be noted that, while this
obligation is not extraterritorial, it may involve conduct that becomes
extraterritorial in the course of the transfer. For instance, if a person is
present in Australian territory and then is removed from Australian territory by
Australian authorities and transferred to a third state. The conduct that occurs
outside of Australian territory is the extraterritorial element. The non-refoulement
obligation requires Australia not to send a person who is in Australia to a country
where there is a real risk that the person would face persecution, torture or
other serious forms of harm (such as the death penalty or arbitrary deprivation
of life) or cruel, inhuman or degrading treatment or punishment.
Scope of Australia's human rights obligations in relation to individuals
detained at Manus Island
The factual background to the incident at the Manus Island RPC from 16
to 18 February 2014 has been described in detail in previous chapters. However,
the following issues are of particular significance in assessing Australia's
obligations in respect of asylum seekers held at Manus Island:
asylum seekers arrived in Australia and were held in immigration
detention in Australia;
Australian authorities transferred asylum seekers from
immigration detention in Australia to immigration detention in Papua New Guinea
where they were detained at the RPC;
the establishment of the RPC and the transfer and detention of
asylum seekers in that facility was pursuant to agreements between Australia
the RPC is entirely funded by the Australian Government;
only asylum seekers transferred from immigration detention in
Australia are held at the RPC;
operational, maintenance, security and welfare support services are
provided by service providers at the RPC under contracts with the Australian Government;
Australian (departmental) officials managed or had significant
involvement in the RSD processes in respect of individuals held at the RPC;
no asylum seeker had received a final decision on their refugee
status at the time of the incident from 16 February to 18 February 2014.
A significant issue in this inquiry has been the extent to which
Australia's obligations under international law apply in respect of asylum
seekers detained in the Manus Island RPC, given its location outside of
As noted above, under international human rights law, a state has an
obligation to respect, protect and fulfil its human rights obligations within its
territory or in relation to persons or situations subject to its jurisdiction. A
state has extraterritorial obligations (that is, obligations outside its territory)
where it has 'effective control' over territory, persons or the situation.
Australia's obligations under international human rights law will
therefore apply to circumstances where asylum seekers or the situation are outside
Australian territory yet under the 'effective control' of Australian authorities.
The committee heard evidence that if Australia had 'effective control' of the
Manus Island RPC and/or the people detained there then this would mean that
Australia has responsibility under international human rights law.
This question of whether Australia exercises 'effective control' over the
Manus RPC was one of the central issues in dispute in the evidence of witnesses
and submitters to the inquiry.
In evidence to the committee, a departmental officer rejected the
argument that Australia has effective control of the Manus Island centre,
[T]here has been a lot of focus and significant claims made
that Australia runs this centre and has 'effective control'. It is a legal
context; it is a legal term. We are very clear that we do not have 'effective
control': we do not run the centre, we do not set the legal framework, we do
not own the buildings, we do not employ the staff, we do not set the policy
framework, we do not outline the labour laws under which people are employed,
we do not have control over the occupational health and safety legislation, and
we do not have control over the environmental legislation. What we do have is a
contracting arrangement for service delivery consistent with the regional
resettlement agreement...[It] needed to be clarified that the Australian
government, through its arrangements there, does not exercise effective
control. It manages contracts consistent with an agreement struck between the
government of PNG and the government of Australia in July and August
This accords with other statements made by the Australian Government in
relation to the operation of offshore processing centres and provided to the
The consistent position taken by Australia is that while we
are assisting PNG and Nauru in the management of the centres, this assistance
does not constitute the level of control required under international law to
engage Australia's international human rights obligations extraterritorially in
relation to the persons concerned.
The view that Australia does not have effective control over asylum
seekers held at the RPC (and consequently does not have concomitant obligations
under international law) was strongly contested in the evidence of a number of legal
and human rights organisations and academics to the inquiry.
For example, the United Nations High Commissioner for Refugees (UNHCR) stated in
As a matter of international law, the physical transfer of
asylum-seekers from Australia to Papua New Guinea, as an arrangement agreed by
the two 1951 Convention States, does not extinguish Australia's legal
responsibility for the protection of asylum-seekers affected by the transfer
A number of submitters and witnesses submitted that Australia has
satisfied the test of 'effective control', and pointed particularly to the degree
of Australia’s involvement in the operation of the Manus Island RPC.
Specific factors identified as evidence of effective control included those
outlined in the factual background at paragraph 7.24 above, such as Australia's
integral involvement in the establishment, arrangements, maintenance, funding
and operation of the centre.
For example, Mr Daniel Webb, Director of Legal Advocacy at the Human
Rights Law Centre, concluded that Australia possessed the requisite degree of
control to attract international human rights obligations:
...Australia's human rights obligations do not end at its
borders. It would defeat significantly the purpose of international human
rights law if states could just do offshore things that it could not legally do
onshore. So for that reason international law is concerned with what states
actually do, not just where they do it. Australia will be responsible for
events on Manus if it can be shown that the arrangements are within Australia's
effective control. The test has been described as being met where a state is a
link in the causal chain that allows human rights violations to take place. In
the context of Manus, Australia designed the arrangements, Australia built and
funds the detention centre, Australia contracts service providers to provide
services at the centre and Australia is involved in the processing of claims
within the centre. So not only is Australia a link in the causal chain,
Australia built the chain and underwrites the chain and is involved very
closely in every link of that chain. So quite clearly Australia has sufficient
control to be regarded as having effective control, and for that reason
Australia is responsible for any human rights violations that take place.
Dr Azadeh Dastyari, associate at the Castan Centre for Human Rights Law,
similarly gave evidence that Australia is clearly exercising effective control.
Dr Dastyari stated:
is an incredibly strong case that Australia exercises effective control. You
mentioned that PNG has not done this before. PNG would not be doing this, this
time, were it not for the Australian government. Everything rests on decisions
made the Australian government. All the transferees are chosen by the Australian
government...[and] the centre is being paid for by the Australian government. But
for the Australian government we would not have detention and we would not have
the asylum seekers in the detention centre on Manus Island. So I think that
Australian government's claims that it is not exercising control over the
centre are very weak. 
Amnesty International, in its December 2013 report into the conditions
at Manus Island RPC, also stated that there is 'little question' that persons
detained at the centre are under the effective control of Australia. 
Obligations flowing from effective
The committee heard that Australia has a range of human rights
obligations in relation to the asylum seekers detained in the Manus Island RPC,
arising from the conclusion that Australia exercises effective control of the
centre and/or the individuals detained in it. As set out above, this includes
obligations to respect, protect and fulfil the human rights of asylum seekers
held at Manus Island, including but not limited to:
the rights of refugees and asylum seekers as well as in relation
the prohibition against refoulement;
the right not to be subject to torture or cruel, inhuman and
degrading treatment or punishment;
the right to humane treatment in detention;
the right not to be arbitrarily detained;
the right to security of person;
the right to health;
the right to life and the duty to investigate; and
the right to an effective remedy.
The committee notes that a finding that Australia had 'effective
control' of the Manus Island RPC at the relevant time would mean that Australia
is liable for internationally wrongful acts, including breaches of its
obligations under international human rights law, in respect of the incident at
the centre from 16 February to 18 February 2014.
A number of submitters and witnesses argued that, whether or not
Australia's involvement is sufficient to reach the level of effective control,
Australia is liable for human rights breaches at the Manus Island RPC under
international law, based on the concept of joint and several liability with
The Amnesty International report on Manus Island RPC noted:
Even if there were some question as to whether Australia's
involvement meets the test of effective power and control, its engagement
certainly establishes that it has at least joint responsibility, together with
Papua New Guinea, for human rights violations committed in the handling of
asylum claims and the detention of asylum seekers in Papua New Guinea.
Similarly, Dr Joyce Chia, Senior Research Associate at the Kaldor
Centre, gave evidence that:
We would certainly agree with the
UNHCR that at any event there is clearly shared and joint responsibility. In
that respect I think the exact details of who funds what is less relevant.
Clearly there is sufficient [connection] to trigger our international obligations
under the state responsibility doctrine.
Submitters noted that the concept of joint responsibility provides that,
if Australia 'aids or assists, directs or controls, or coerces' PNG to commit a
breach of PNG's human rights obligations, Australia will also be responsible if
it has knowledge of the circumstances of the breach, and the conduct would have
been in breach of Australia's human rights obligations if Australia had
committed the breach itself.
Obligations under doctrine of joint
If Australia does not have effective control of the Manus Island RPC, it's
specific obligations under the doctrine of joint responsibility are likely to
be different in scope to the obligations that would flow from a finding that Australia
possessed 'effective control'. This is because the scope of Australia's
potential liability under the concept of joint responsibility would largely be in
reference to PNG's obligations under international human rights law.
Australia's liability in these circumstances would be based on the extent of
contribution to any violation of these obligations under international human
Human rights assessment of the incident at the MIDC between 16 February and
18 February 2014
Breaches of human rights
contributing to the incident
As highlighted in chapters 3 and 4, the committee received evidence from
organisations which had undertaken monitoring visits to the centre in the lead
up to the incident expressing concern about the harsh physical conditions in
the centre, the mandatory detention of asylum seekers, the return oriented
environment at the centre, poor health care services and lack of certainty
around RSD processes and resettlement.
The evidence of a number of legal and human rights organisations echoed
such concerns, and suggested that breaches of Australia's obligation to
respect, protect and fulfil human rights at the Manus Island RPC contributed to
the distress of asylum seekers and, ultimately, to the unrest between 16 February
and 18 February 2014.
The alleged breaches included:
lack of progress and uncertainty with respect to RSD in breach of
mandatory detention for long periods amounting to arbitrary
detention in breach of Australia's obligations (article 9, ICCPR);
harsh and dehumanising conditions at the Manus Island RPC which amounted
to cruel, inhuman and degrading treatment or punishment and violations of the
right to be treated humanely in detention in breach of Australia's obligations
(article 7, CAT, articles 7 and 10, ICCPR);
inadequate access to health services in breach of Australia's
obligations (article 12, ICESR).
Breaches of human rights in
relation to the incident
Some submitters and witnesses argued that, in relation to the incident
between 16 February and 18 February itself, a number of specific breaches
of Australia's obligations under the ICCPR occurred, specifically: the right to
life, the right to security of person, and the right to an effective remedy.
Right to life – duty to protect
A number of submitters and witnesses argued that the death of Mr Reza
Barati involved a breach of the right to life by Australia, due to Australia's
failure to protect him.
The Kaldor Centre explained that Australia's duty to protect Mr Barati may have
been engaged in respect of acts done by employees or contractors at the Manus Island
If Reza Barati was killed by people acting on behalf of the
State (whether by employees of G4S or PNG authorities), the State's obligations
would be engaged under article 6 of the ICCPR. Under international law, the
State remains responsible for the acts of persons acting on governmental
authority, whether or not these are State officials as such, and whether or not
the acts exceeded authority or contravened instructions...Furthermore, States
have an obligation to take appropriate steps to safeguard the lives of those
within their territory and/or jurisdiction. The same facts that may suggest
negligence on the part of G4S suggest that there may have been a violation of
Dr Dastyari, from the Castan Centre for Human Rights Law expressed the
view that, in addition to breaching its obligation to protect life in respect
of Mr Barati, Australia was in continuing breach of this obligation due to
the continuing detention of people in the Manus Island RPC.
Right to life – duty to investigate
Some submitters further argued that Australia had not met its specific
right to life obligation in respect of the requirement to initiate and conduct an
effective and proper investigation of Mr Barati's death (duty to investigate).
Amnesty International, for example, called on the Australian Government
to 'conduct an independent inquiry into the violence with the joint
co-operation of the Australian and PNG governments'; and stated that '[p]erpetrators
of the violence must face criminal prosecution in accordance with international
laws and standards, without recourse to the death penalty'.
Under international human rights law, there are certain standards that
an investigation needs to meet in order to be compliant with the duty to
investigate. These standards include that the investigation be:
brought by the state in good faith and on its own initiative;
independent and impartial (including practically and
adequate and effective;
carried out promptly; and
open to public scrutiny and inclusive of the family of the
deceased, with the family given access to all information relevant to the
The Kaldor Centre argued that investigations to date by the Australian
authorities, including this committee's inquiry, may not be sufficient to
fulfil these standards.
It noted that identifying and punishing those responsible for the breaches is a
critical aspect of ensuring an investigation is adequate.
Right to security of person
As discussed in chapter 5, evidence to the inquiry is clear that a large
number of asylum seekers were assaulted at the Manus Island RPC during the
incident between 16 February and 18 February.
Some submitters claimed that these assaults represent a breach of
Australia's obligations with respect to the right to security of person, to the
extent that assaults were committed by agents of Australia or that Australia
failed to prevent the assaults or provide redress.
Right to an effective remedy and
preventing recurrences of violations
The right to an effective remedy requires not only holding perpetrators
to account but also making reparation to individuals whose rights have been
violated and preventing recurrences of human rights violations.
In relation to the type of remedies to be regarded as effective to
address the violations of human rights at the Manus Island RPC, the Kaldor
Centre suggested that:
Remedies that may be required in relation to the incident on
Manus Island...are likely to include compensation for those injured, changes to
procedures and practices, public acknowledgment of violations, and the
institution of an effective complaints mechanism for those on Manus Island.
A number of submitters and witnesses from human rights organisations identified
the necessity of preventing recurrences of violations, including continuing
violations related to the death of Mr Barati and the injuries to other asylum
seekers at the Manus Island RPC.
Ms Sophie Nicolle, Government Relations Advisor of Amnesty
International, submitted that the most effective way to prevent further
violence and ensure the rights of asylum seekers was to 'end offshore
processing at Manus Island in order to guarantee the right to life and safety
of the person for asylum seekers there'.
Similarly, Mr Daniel Webb of the Human Rights Law Centre stated:
Leaving people languishing indefinitely in harsh conditions
with no certainty about their future will inevitably cause harm and lead to
unrest. It [has] done so with tragic consequences...The Human Rights Law Centre's
position is that the Manus detention centre should be closed: conditions remain
inhumane; mandatory and indefinite detention and penalising asylum seekers on
account of their unauthorised arrival continue to be breaches of international
law; and, perhaps most importantly, asylum seekers remain at risk of harm.
While expressing the view that the Manus Island RPC should be closed as
the best way of preventing further human rights violations, the Human Rights
Law Centre also made specific recommendations in the event that the centre
remains open, submitting that the Australian Government should 'take urgent
ensure individuals responsible for acts of violence are held to
ensure the safety of asylum seekers within the Manus RPC;
address the inhumane conditions inside the RPC; and
address the inordinate delays in processing and resettlement
which underpinned the unrest.
Amnesty International also made a number of specific recommendations for
ensuring the human rights of asylum seekers in relation to the incident at the Manus RPC.
These recommendations included for the Australian Government to:
immediately remove to Australia all asylum seekers who witnessed
or were injured in the violence, for their safety and protection;
ensure that all asylum seekers injured in the violence receive
adequate professional assistance, including medical treatment, full
rehabilitation and mental health services, as well as independent legal advice;
ensure that asylum seekers have the right to access lawyers; and
ensure access to the detention centre by lawyers and human rights
In response to concerns about possible human rights breaches in relation
to the incident, the department maintained its position that Australia's
obligations under international human rights treaties including the ICCPR do
not extend to individuals held at the Manus Island RPC,
and that any such obligations rest with PNG. Mr Mark Cormack, a Deputy
Secretary at the department, stated:
The responsibility for the operation and running of the Manus
centre lies with the PNG government. Our responsibility is to provide support
through the contracting arrangements that we have with service providers, but
these centres operate under PNG law...
The PNG government is signatory to a range of conventions and
that is where the accountability lies.
Duty of care responsibilities under domestic law
In addition to Australia's obligations under international law, the
committee also received evidence in relation to Australia's duty of care
responsibilities under Australian domestic law in respect to those held in the Manus
Island RPC. A number of submitters argued that Australia has a non-delegable
duty of care under common law to ensure the safety of asylum seekers at held at
The Australian Lawyers Alliance (ALA) stated that a non-delegable duty
of care has the effect of fixing liability for negligent acts to a particular
person, even if that person has delegated responsibility for performance of
those acts to a third party, and that non-delegable duties of care typically
arise where there is particular responsibility for a person due to issues of
control or vulnerability.
Dr Andrew Morrison QC of the ALA stated in evidence to the committee that
the non-delegable duty of care means that the Australian Government, 'by
employing an organisation such as G4S, does not cease to be responsible'.
The Kaldor Centre similarly noted that in respect of responsibilities under a
non-delegable duty of care:
...the Australian Government could not rely upon its employment
of a qualified independent contractor to discharge its duty of care to the
detainees. Rather, the Australian Government itself was required to ensure that
care would be taken and is liable for any breach of that duty of care.
These submitters noted that the Australian Government may be in breach
of this duty of care obligation due to the severe conditions in the Manus
Island RPC leading up to the incident.
The Kaldor Centre noted that to assess whether there had been a breach of duty of
care by the Australian Government it would be necessary to examine the
'foreseeability' of the risks and the 'reasonableness of care taken'. The ALA
submitted that factors indicating a breach included inappropriate fencing,
inadequately trained staff, understaffing, inadequate monitoring, inadequate
preparation in the event of emergency, allegations of sexual harassment,
disease, poor hygiene, lack of access to appropriate quantities of water and
inadequate mental health and medical care services.
The department noted the following in relation to any duty of care owed
by Australia to transferees held at the Manus Island RPC:
The existence and nature or scope of a duty of care in the
regional processing context is a complex question involving consideration of
foreign laws and the roles played by a range of parties including foreign and
Australian governments and their officers as well as non-government service
providers and their employees. Such a question normally entails judicial
evaluation of the relevant factors involved. As such issues are the subject of
current litigation, it would not be appropriate to comment.
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