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Whatsapp Accommodation inside the Nauru offshore processing facility.

A group of Australian lawyers is trying to make the case that Australia's immigration detention centre in Nauru is a Commonwealth workplace, and that the government therefore has a duty of care to asylum seekers, which it is failing. Do they have a case?

If you walk into a government building such as a Centrelink office, the Australian government has a duty of care. They must ensure that you're not in danger of harm or illness.

The Department of Immigration, to be frank, is probably running the most unsafe workplaces in the Commonwealth.

Australia's offshore detention centre in Nauru is technically a Commonwealth workplace, so do the same rules apply for asylum seekers? A group of Australian lawyers believes so and wants to take the issue up with the regulator.

'Under the Commonwealth Work, Health and Safety Act 2011 there is a duty of care which is imposed by Commonwealth departments to ensure that it doesn't recklessly or without reasonable excuse engage in conduct that exposes a person to the risk of death or serious injury or illness,' says barrister Greg Barns.

'It's the same argument in relation to asylum seekers. Nauru is a Commonwealth workplace, it is part of the extended geographical jurisdiction of the Work, Health and Safety Act.

'There is a duty of care that is owed not only to workers and contractors in Nauru in the detention centre, but also a duty of care owed to any person who comes on to that site, and that of course includes asylum seekers.'

Speaking on behalf of the Australian Lawyers Alliance, Barnes says the alliance will soon send a detailed submission to Comcare, the regulatory agency responsible for overseeing and investigating workplace safety incidents in government workplaces.

The submission points to a number of specific incidents that the Alliance says Comcare is duty-bound to investigate.

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Whatsapp The detention centre in Nauru following riots in 2013.

'Comcare to this point has been very disappointing in our view, in the fact that it hasn't been more diligent in pressing the Department of Immigration,' says Barns.

'The Department of Immigration, to be frank, is probably running the most unsafe workplaces in the Commonwealth.

'It's exactly the same for clients going into a Centrelink office or to the tax office: any Commonwealth workplace has to ensure not only that the workplace is safe for those who work there, but any person, and that means anyone who comes onto that workplace.'

'Serious sexual assaults have been documented, allegations have been made in relation to assaults on Nauru and the well documented psychological harm that is happening to children, none of that has been regarded as notifiable incidents by the Department of Immigration, and so Comcare hasn't been given the opportunity to look at those particular matters.'

Barns says the recent failed High Court challenge to Australia's offshore detention regime does not undermine Australian Lawyers Alliance submission.

'That decision didn't look at any duties that are owed by the Commonwealth. All the High Court was saying was yes, it can be done as a matter of law, but it did not deal with the issue of the duty of care that is owed to individuals,' he says.

'When there is broad concern in the community about the way in which the limited resources of regulators are spent, we do see a reprioritising of those resources.

'You've got to keep pushing.'

Listen to the full episode Barrister Greg Barns from Australian Lawyers Alliance joins The Law Report.

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