Jurisprudential Sources for Establishing Standards of the Duty of Care in Offshore Immigration Detention Facilities

• Author: Richard Harding
• Position: Emeritus Professor, University of Western Australia
• Pages: 124-142

124

JURISPRUDENTIAL SOURCES

FOR ESTABLISHING STANDARDS

OF THE DUTY OF CARE IN

OFFSHORE IMMIGRATION

DETENTION FACILITIES

RICHARD HARDING1*

I INTRODUCTION

In 2012, the Australian Government, by arrangement with the Government of

Papua-New Guinea, opened an offshore refugee-processing centre on Manus

Island (the MIRPC). This is part of PNG, and is situated in the Admiralty

group of islands. By Australian law refugees attempting to get to mainland

Australia by boat and without a visa were categorised as “unauthorised

maritime arrivals” and were accordingly sent to Manus Island or another

offshore centre on Nauru.

The conditions of detention were constantly a source of criticism - politically, in

the media, internationally, and amongst civil society. In May 2014 a class action

was brought on behalf of detainees and former detainees at the MIRPC, alleging

breach of the duty of care by the Commonwealth Government.

“Duty of care” is not a self-dening concept. Its details depend on the exact

circumstances. In a detention situation, reasonable expectations need to be

identied and standards established as a precursor to identifying whether the duty

has been met or breached.

In the Australian context, it is not straightforward to identify what are reasonable

standards. This is partly because of the well-known Australian position that

international conventions or treaties to which the Commonwealth is a Party do

not ipso facto become part of Australian domestic law. Thus, such documents as

the International Covenant on Civil and Political Rights, the Convention on the

Rights of the Child, the UN Convention against Torture, the UN Convention on

the Status of Refugees – to each of which Australia is a Party – do not directly

dene aspects of the standards going to make up a duty of care.

The article explores how to tease out reasonable standards. It is shown that in

* Emeritus Professor, University of Western Australia.

125

other areas relating to detention, Australia’s embedded approach is that domestic

standards should be “informed by international obligations.” It is argued that this

approach is integral to standard setting for immigration detention. The recent

decision to ratify OPCAT (the Optional Protocol to the Convention against

Torture) has fortied this policy and expectation.

Drawing upon Australian material - including internal Departmental guidelines,

contract provisions, inspection reports possessing persuasive status – and also

upon comparable developments in other jurisdictions - notably the UK – it is

appropriate to construct the detailed standards that go to make up a “duty of care”

regime. These are set out for the Manus Island context.

The Australian position that international obligations do not nd their way into

domestic law unless and until they are expressly legislated has thus not been an

impermeable barrier against absorbing decent standards into offshore immigration

detention practice.

The case itself was settled with payment of $70 million by the Commonwealth

before these matters could be properly determined in Court.

II THE CLASS ACTION

In May 2014, a class action – Kamasaee v. The Commonwealth and others –

commenced in the Supreme Court of Victoria. The action was brought on behalf

of 1905 persons who had at one time or another been held, or were currently

being held, at the Regional Processing Centre situated at Manus Island, Papua-

New Guinea (hereafter MIRPC). The basis of the action was breach of the duty of

care owed to detainees, such breach having caused various medical, physical and

mental health problems to the detainees.

Thus, the action did not in itself challenge the legality or political legitimacy of

the Commonwealth’s border protection measures with regard to the detention of

refugees (“unauthorised maritime arrivals”1). The question, fair and square, was

whether the mode of carrying out that policy was in breach of prevailing standards

of care.2

1 Migration Act 1958 (Cth) s 189.

2 The action was later broadened to include an allegation of unlawful detention. This

followed upon a decision of the Supreme Court of Papua-New Guinea that the detention

was unlawful by PNG law. This decision was widely reported in the Australian media:

see, e.g., 'PNG's Supreme Court Rules Detention of Asylum Seekers on Manus Island

Is Illegal', ABC News, 27 April 2016.” This aspect of the case is not discussed in this

paper. The settlement eventually reached in the case did not address the issue of unlawful

detention: see n 9, below.