An open letter alleging abuse of detainees on Nauru and government inaction could have far reaching legal consequences, and strengthens the hand of any victim who wants to sue the Commonwealth, writes Greg Barns.

The significance of the open letter signed by 24 individuals who are, or have worked, at the Nauru detention centre, is not only political but legal.

Let us leave the political consequences to one side and focus on the latter because the letter appears to suggest that the Commonwealth, which has a non-delegable duty of care to asylum seekers in detention onshore and offshore, has knowingly breached that duty.

The open letter, whose signatories include a former head of mental health services, and workers from Save the Children, suggests that the Department of Immigration has had knowledge since late 2013, obtained through its officers participating in staff meetings and by way of written briefings, of sexual and physical assaults on women and children at the centre.

The letter also alleges that despite having this knowledge the Commonwealth Government did nothing, or certainly not enough, to prevent these assaults from continuing to occur.

On March 25 last year Dr Andrew Morrison SC, a leading barrister in the area of institutional duty of care, and myself explained on this site how the Commonwealth was liable for the wellbeing of asylum seekers even though it employs contractors. We noted:

The law in Australia is that the Commonwealth Government owes a non-delegable duty to detainees in immigration detention and the Commonwealth can be held liable "for the negligence of others who are engaged to perform the task of care for a third party - no matter whether the person engaged to provide the care is a servant or an independent contractor," as the High Court stated in a landmark 2003 decision called NSW v Lepore.

The legal position has not changed since then.

If the open letter signatories are correct and there is oral and written evidence pointing to the Commonwealth doing little or nothing to prevent physical and sexual assaults after it had such incidents brought to its attention, then it would seem clear the Commonwealth has breached that duty of care to all of those persons who have been psychologically and/or physically injured as a result of the assaults.

The open letter certainly strengthens the hand of any assault victim at the Nauru detention centre who wants to sue the Commonwealth.

It is notable that the open letter argues the Commonwealth has not only failed to exercise its duty of care to ensure detainees are not harmed but the signatories say it is "absolutely clear: The Government of Australia and the Department of Immigration and Border Protection have tolerated the physical and sexual assault of children, and the sexual harassment and assault of vulnerable women in the centre for more than 17 months."

If this statement is a reflection of the reality then the issue becomes what other legal sanctions are available to ensure justice for the victims of what appears to be the turning of a blind eye by the very people who should have been doing their best to care for vulnerable detainees.

For example, if Immigration Department officials or the Minister for Immigration deliberately refused to allow victims of sexual abuse, physical assaults or harassment to be moved from the Nauru detention centre (the open letter says that this was the case with some women) or if it turned a blind eye to abuse that was occurring this may be grounds for a legal action called misfeasance in public office.

Misfeasance in public office has been around since the 18th century but is emerging in common law countries like the UK, Australia, Canada and New Zealand, as a way of obtaining compensation from government officials who either intentionally or through reckless indifference cause harm to others.

In the case of a failure by Immigration Department officials and or the Minister for Immigration to remove women detainees who had been assaulted and abused this might constitute a misfeasance in public office if it can be proved that the Departmental official or the Minister knew, or was recklessly indifferent to the likelihood that harm would occur to those women because of his or her failure to exercise his or her duty to keep them from harm in detention.

There is also the question of a Comcare investigation and possible criminal charges being brought against the Department of Immigration.

Max Costello, a former prosecutor in the area of workplace safety, says that the Nauru detention centre is a Commonwealth workplace and that the Department has a responsibility under workplace safety laws to ensure it is safe for employees and those who are forced to reside there. Non-compliance with workplace safety laws can result in fines of up to $3 million and jail for up to five years.

One would have thought that the open letter would have Comcare investigators hot footing it to Nauru to examine the evidence for bringing charges against the Department of Immigration.

The mistreatment of asylum seekers and the Commonwealth Government's blithe attitude to it is unconscionable and justice must be accorded to those who have suffered on Nauru. The open letter from the 24 former and current Nauru workers is damning and if its contents are correct (and there is nothing to suggest otherwise) then the road to justice will have become a little easier for those asylum seekers who have been wronged.

Greg Barns is a barrister and a spokesman for the Australian Lawyers Allliance. He is currently advising Independent Member for Denison Andrew Wilkie MP on a request to the International Criminal Court to investigate Australia's asylum seeker policies.

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