Successive Governments have tried to handle this issue with arguably mixed successes and outcomes. For the ‘Children Overboard’ affair in 2001 to the more recent Manus Island incident of February this year, these are clearly issues that won’t be slipping from the Australian consciousness any-time soon.
Whatever our individual political position has been as to what is the appropriate and humane way to address these arrivals, surely one thing has been certain – the immense risk they and their families face in an attempt to find a better life here. The incidents that occurred at Manus Island, 16 and 18 February 2014, resulted in the death of a 23 year old Iranian man who as attempting to gain asylum in Australia.
News reports suggested that his death was due to a severe head trauma, caused by either an employee of the detention centre, or a Salvation Army worker who was present. The incident also left 69 people injured. In anyone’s language, surely this is not a satisfactory outcome for a group of vulnerable people who are seemingly risking everything to travel here. This incident has raised concerns on an international level, as to the extent that the Australia Government is fulfilling its obligations under international law.
But what are Australia’s obligations? Does the Australia Government have a responsibility to ensure the safety of those persons detained in the Manus Island camp, despite the fact that the detainees have been placed outside of Australia?
The short answer is yes.
One of those responsibilities relates to the ‘Non-Delegable Duty of Care’ owed by the Australian Government. That is, a duty of care that cannot be assigned or delegated to another party – in this instance to the Government of Papua New Guinea. The concept of a non-delegable duty of care is a long accepted principle in common law jurisdictions.
For example, in an employment situation an employer has a non-delegable duty of care towards an employee who may be working on a work site that is operated by another entity. This is a concept that lawyers see on a day to day basis in personal injuries litigation, like us here at Gouldson Legal. It is commonly prevalent in situations where we are acting for an employee of a labour hire company that is ‘placed’ with an host employer and sustains injuries during the course of that employment.
In those instances, the labour company cannot assign or delegate their responsibility to the host employer despite the fact that the host employer may have, in practical terms, almost complete control over the workplace.
Outside of the employment sphere, a similar duty of care has long been held to exist at common law towards those people who have been detained against their will whilst in detention or custody. Cases such a L v Commonwealth (1976) 10 ALR 269, New South Wales v Bujdoso  HCA 76, along with one of the earlier decisions of Ellis v Home Office  2 All ER 149 – all support and confirm the common law position.
In Bujdoso for example, Mr. Bujdoso was a convicted sex offender against children. He was eventually transferred to the SIlverwater prison where he was threatened by a number of fellow inmates. Prison authorities were aware of those threats. He was later attacked by 2 inmates with an iron bar, suffering serious injuries.
The court found that: …where one stands in loco parentis, or is put in charge of persons under circumstances that deprive them of normal means of self-protection (e.g. prisoners), he must use care to restrain the foreseeable dangerous conduct of third persons that unreasonably threatens his wards’.
So too does the Australian Government have a legal obligation to ensure the safety of those persons who are housed in detentions centres such as Manus Island, where the Australian Government exercises a certain degree of control.
Many in the community, especially the legal fraternity have formed the view that the Australian Government stands in the same shoes as the prison warden. There exists a non-delegable duty of care that requires the Australian Government to ensure the safety of these people, and that furthermore the Australian Government could even be held vicariously liable for the actions of the independent contractors working at the centre. In November 2013, Lieutenant General Angus Campbell the commander of the Government’s Operation Sovereign Borders, reported to the Australian Government that the security at the centre was far from adequate.
Recommendations were made including an upgrade of lighting and fencing, as well as the installation of CCTV cameras. Lieutenant General Angus Campbell was also of the view that the centre was understaffed, employed inadequately trained staff (most of the local employees had no security training) and in the event of an emergency, there was no-where within the compound to take detainees. There have also been allegations of sexual harassment, rampant disease, poor hygiene, lack of access to water, inadequate mental health and medical care services. Sadly for the victim of the February incident at Manus Island and the 69 people injured, the recommendations were not followed. If similar allegations were made towards any of our state or federal run prisons, the repercussions would be swift.