Lawyers and human rights advocates say Australia has a ‘non-delegable duty’ to asylum seekers on Manus

This article is more than 6 years old

This article is more than 6 years old

A series of witnesses have given evidence of the extent of the Australian Immigration Department’s control of the Manus Island detention centre as a Senate inquiry considered the government’s legal responsibility for the harm caused by recent unrest.



The Senate committee convened to investigate the circumstances surrounding the disturbances, which led to the death of Reza Barati and serious injuries for dozens of asylum seekers, heard evidence from lawyers and human rights advocates on Thursday and Friday that Australia’s legal obligations do not end simply because the Manus detention centre is in Papua New Guinea.



While the Immigration Department has indicated the detention centre is run by the Papua New Guinea government, evidence presented by former guards, service provider G4S, case workers and welfare officers has indicated Australia’s Immigration Department exercised a high level of control over the centre.



Kate Schuetze, Amnesty International’s Pacific researcher, said: “As part of our research we did find that the Australian government is in effective control of the centre, which includes day to day control of the centre.”



Greens senator Sarah Hanson-Young said during the hearings: “We’ve had a lot of evidence put to us over the last few days about effective control. We’ve heard from staff directly that decisions made about day to day operations at the centre came from the Department of Immigration officers located at the centre.”



Azadeh Dastyari, a Castan Centre for Human Rights Law associate, said there was an “incredibly strong case that Australia exercises effective control” of the centre.



“Everything rests on decisions made by the Australian government,” she said. “But for the Australian government we wouldn’t have detention, and we wouldn’t have asylum seekers in detention on Manus Island.”



Dr Joyce Chia, from the Andrew & Renata Kaldor Centre for International Refugee Law, said the conditions at Manus Island risked damaging Australia’s record on meeting its international obligations.



“Any time a state violates its international legal obligations it undermines the protection of human rights around the world,” she said.



“It makes it very difficult for Australia then to advance its own human rights agenda … particularly in the Asia Pacific.’



The Australian Lawyers Alliance’s Andrew Morrison added that even if the government did not exercise control over the centre, the Australian government still had a “non-delegable duty” to asylum seekers that might give rise to legal claims.



“There is no doubt that there is a non-delegable duty of care that exists, and it’s a matter of applying the law and the commonwealth’s duty of care to determine whether there is liability,” he said.



Ben Pynt, director of human rights advocacy at Humanitarian Research Partners, gave evidence that he was in regular contact with asylum seekers who continued to raise serious concerns about the conditions they faced at the centre.



He gave evidence of distressing conditions, including testimony that some asylum seekers had been electrocuted while they showered, due to poor wiring.



He said: “Every day I receive an email or a phone call or a Facebook message telling me a person is going to commit suicide in a certain way … it’s extremely distressing.”



When questioned about who the asylum seekers believed was in control of the centre, he said: “There is absolutely no ambiguity. Australia is in control of the centre.”

