Flouting 'duty of care' to asylum seekers may result in huge damages claims

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Recognition is growing that a number of feasible claims against the Commonwealth for failing to provide non-delegable duty of care might now be available to many individuals suffering adverse consequences of indefinite detention. Human rights lawyer, Joshua Dale reports. 

THE TREATMENT of refugees in Australia is clearly not only a legal issue, but also a moral one, which has challenged the collective Australian psyche over the past decade.

Whether it is the former Labor government’s 2011 “Malaysia Solution” or the current Coalition government’s mantra of “Stop the boats”, how we treat refugees and asylum seekers has become a key focus of Australian politics, election promises and, ultimately, law.

While the battle between law and morality is fought out in the political arena, individuals in immigration detention continue to suffer physical and psychological injuries, sometimes with devastating and long-lasting effects.

Some of these cases potentially involve breaches of common law rights that, if pursued, could result in significant awards of damages.

In light of recent findings of the failings by the Commonwealth’s main health providers what does this mean for those that are detained and suffer permanent injury?

Detention —  is it lawful?

Under s198A of the Migration Act 1958 (Cth) (Migration Act), if an individual enters Australia’s jurisdiction claiming asylum they may not be removed from Australia for the purposes of having their refugee status assessed unless the country to which they are being removed to meets the criteria set out in s198A (3).

This section essentially creates the power to detain and/or assess asylum seekers in Australia’s various detention facilities or a place designated as an offshore processing country.  Under s189 of the Migration Act,

if an officer knows or reasonably suspects that a person in the migration zone (other than an excised off-shore place) is an unlawful non-citizen, the officer must detain the person

until such time as a visa is granted or they are removed from Australia and returned to their country of origin. However,

if an officer knows or reasonably suspects that a person in an excised off-shore place [such as Christmas Island] is an unlawful non-citizen, the officer may detain the person’. 

There is no provision governing the length of time that an asylum seeker may be detained. In fact, in Al Kateb v Godwin, the full Federal Court confirmed that indefinite mandatory detention of asylum seekers is within the scope of the Act.

On face value, it is clear that mandatory detention of asylum seekers is not enough to amount to unlawful detention. However, a number of administrative provisions must take effect before one can be detained. Sections 194 and 195 of the Migration Act provide for a reasonable period of time to be given to any asylum seeker to apply for an appropriate visa, such as a bridging visa or a protection visa.

In the case of Sales v Minister for Immigration and Multicultural Affairs, the plaintiff was found to have been falsely imprisoned, with the Federal Court finding that 14 days’ notice was not enough time to afford procedural fairness in the circumstances.

However, the full bench of the Federal Court has since confined the application of ss194 and 195, suggesting that false imprisonment occurs only if detained during the reasonable notice period, and for its duration only.

Therefore, most individuals who travel to Australia seeking asylum or protection who are likely to be immediately detained and held in one of Australia’s detention facilities are unlikely to have any claims to unlawful detention except for the reasonable notice period governed by the Migration Act.

However, it is asylum seekers’ experiences while in these detention facilities that potentially gives rise to a breach of a non-delegable duty of care on the part of the Commonwealth.

Does the Commonwealth have a duty of care? 

Despite murmurs from the government to the contrary the Commonwealth government does have a duty of care to asylum seekers and detainees in Australia’s various immigration detention centres. Aside from the well-known international human rights treaties, there is a plethora of case law that involves the Commonwealth of Australia and a duty of care generally.

It is quite a unique duty which is established when the dictates of policy allow for the indefinite detention of any individual while their visa status is being processed.

For example, the High Court of Australia in Behrooz v Secretary, Department of Immigration and Multicultural and Indigenous Affairs & Ors, has made clear that:

‘Harsh conditions of detention may violate the civil rights of an alien. An alien does not stand outside the protection of the civil and criminal law.  If an officer in a detention centre assaults a detainee, the officer will be liable to prosecution, or damages. If those who manage the detention centre fail to comply with their duty of care, they may be liable in tort. But the assault, or the negligence, does not alter the nature of the detention. It remains detention for the statutory purpose identified.’

However, the Court also noted that while a detainee may face extreme difficulties during detention, that exposure alone does not give rise to unlawful detention.

Whilst exposure to extreme difficulties and harsh conditions is not enough to be considered unlawful in Australia, the law has developed in such a way that there is now precedent establishing a duty of care that cannot be delegated by the Commonwealth. In 2014 the Federal Court of Australia in AS v Minister for Immigration and Border Protection confirmed that the Commonwealth accepted that it owes a non-delegable duty of care to provide reasonable healthcare to detainees, and conceded that the Minister also arguably owed a non-delegable duty of care in this regard.

This case revealed a clear concession on the part of the Commonwealth that it cannot contract its responsibilities out to other organisations, and that ultimate responsibility remains with the Commonwealth regardless of which services are engaged by external providers or where those services are offered.

Aside from cases, specifically involving detainees, there is also well established law in various jurisdictions throughout Australia, mainly in the context of prisons that any authority which takes on the management of the day to day life of individuals it holds in detention will have a non-delegable duty of care.

Conversely, this had also been confirmed by the Federal Court of Australia whereby in MZYYR v Secretary, Department of Immigration and Citizenship & Anor, the Federal Court of Australia identified that:

'The Commonwealth is in a position of control. Detainees cannot reasonably be expected to safeguard themselves from danger, especially detainees with mental health needs which are known to the Commonwealth.'

It would, therefore, be an extraordinary claim that the Commonwealth does not have a duty to care for detainees in any detention centre, particularly from a health care perspective, be it in Australia or indeed anywhere in the world where our government sends these individuals.

Ultimately, any attempt by the Commonwealth Parliament to either shift responsibility either to a contractor or to another country would be invalid. So long as the Australian government has financial and managerial control over detention centres, regardless of their location, nothing can be done, no matter what legislation is introduced, to escape the ambit of the non-delegable duty of care that will survive in our courts regardless. 


With the growing recognition of a non-delegable duty of care on the part of the Commonwealth, a number of feasible claims might now be available to many individuals who are found to suffer the adverse consequences of being held indefinitely in Australia’s detention facilities. 

Whether the pursuit of these cases on behalf of deserving plaintiffs will one day inspire some kind of policy change to the concept of mandatory detention in Australia and the conditions faced by detainees in those environments remains to be seen.

Joshua Dale is an associate at Carroll & O’Dea Lawyers and Chair of the NSW Human Rights Committee of the Australian Lawyers Alliance. 

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