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Legal and Constitutional Affairs References Committee
13/06/2014
Incident at the Manus Island Detention Centre from 16 to 18 February 2014

BARNS, Mr Greg, Former National President and Spokesperson, Australian Lawyers Alliance

KLUGMAN, Dr Kristine, OAM, President, Civil Liberties Australia

MOJTAHEDI, Mr Ali, Member, Human Rights Committee, The Law Society of New South Wales

MORRISON, Dr Andrew Stewart, RFD, QC, Spokesperson, Australian Lawyers Alliance

ROWLINGS, Mr Bill, OAM, Chief Executive Officer, Civil Liberties Australia

YOUNG, Ms Natalie, Member, Human Rights Committee, The Law Society of New South Wales

Evidence was taken from Mr Barns, Mr Mojtahedi and Ms Young via teleconference—

Committee met at 09:00

CHAIR ( Senator Wright ): Good morning, everyone. I now open this public hearing for the Senate Legal and Constitutional Affairs References Committee inquiry into an incident at Manus Island detention centre from 16 to 18 February 2014. On 5 March 2014 the Senate referred the matter of an incident at the Manus Island detention centre from 16 to 18 February 2014 to the committee for inquiry and report. The full terms of reference are available from the secretariat. The reporting date for the inquiry is 16 July 2014. The committee has received 34 submissions for this inquiry. All published submissions are available on the committee's website.

I remind all witnesses that in giving evidence to the committee they are protected by parliamentary privilege. It is unlawful for anyone to threaten or disadvantage a witness on account of evidence given to a committee and such action may be treated by the Senate as a contempt. It is also a contempt to give false or misleading evidence to a committee. The committee emphasises, however, that parliamentary privilege does not extend outside of Australia and that Australian law cannot protect individuals in another country, whether they are Australian nationals or not. For this reason and so as not to prejudice ongoing criminal investigations and legal proceedings the committee urges witnesses to exercise caution with regard to naming or otherwise identifying individuals located outside Australia, including Papua New Guinean nationals alleged to have been involved in the incident at the Manus Island detention centre during 16 to 18 February.

The committee prefers all evidence to be given in public, but under the Senate's resolutions witnesses have the right to request to be heard in private session. It is important that witnesses give the committee notice if they intend to ask to give evidence in private session or in camera. If you are a witness today and you intend to request to give evidence in camera please bring this to the attention of secretariat staff as soon as possible. If a witness objects to answering a question the witness should state the ground upon which the objection is taken and the committee will determine whether it will insist on an answer, having regard to the ground which is claimed. If the committee determines to insist on an answer a witness may request that the answer be given in camera. Such a request may of course also be made at any other time.

This public hearing is being televised within Parliament House and is also being broadcast live via the web. Recording of today's proceedings by members of the press is subject to the agreement of the committee. Members of the press authorised to record proceedings must follow the directions of the committee at all times. The committee may require that recording of proceedings cease at any time and any members of the press that do not comply with the committee's directions may be removed from the hearing.

With the formalities over I welcome everybody here today. I welcome representatives from Civil Liberties Australia, Australian Lawyers Alliance and The Law Society of New South Wales, who are attending via teleconference. The committee has received your submissions as submission No. 5, submission No. 13 and submission No. 8 respectively. If no-one has any alterations or amendments to be made to submissions, I will invite each of you to make a short opening statement before we go to questions.

Mr Barns : I am speaking on behalf of the Australian Lawyers Alliance and appearing here today with Dr Morrison. The submission that we put together deals with two issues. One is the non-delegable duty of care, which Dr Morrison will talk about. And the issue I want to talk about is the nature of the Commonwealth's duty as the entity that detains people in detention centres, whether it be onshore or offshore. It can be likened, in a legal setting, to a prison. That is, when people are in custody, whether it be in a prison environment or immigration detention, there is an assumption by the entity that is detaining that person that it will take reasonable care for their safety during that detention. That relationship is a special one that is sufficient to include a responsibility to exercise care to prevent harm deliberately and unlawfully inflicted by others.

There are a series of authorities that we refer to in our written submission. In particular I would refer you the decision of the High Court in New South Wales v Bujdoso, which sets out the way and reason as to why that duty of care is assumed. Essentially it is because there is what is called a special character. That is, people who are in detention do not have an autonomous existence; they are subject to control and direction. Therefore, those who detain them have to ensure that they are protected from any violence by third parties, such as other detainees or security officers or anyone else in the detention centre. And there is a duty on the part of the Commonwealth to take reasonable care in the exercise of the powers of control and direction of people who are in detention to ensure that they do not get injuries. This is particularly relevant in relation to Manus Island and the Manus Island incident. I will stop there and hand over to Andrew Morrison.

Dr Morrison : It is worth adding to that that the duty of care is a high duty because of, as Greg has said, that assumption of responsibility. In a High Court case called Kondis, Justice Mason, as he then was, said:

In these situations the special duty arises because the person on whom it is imposed has undertaken the care, supervision or control of the person or property of another or is so placed in relation to that person or his property as to assume a particular responsibility for his or its safety, in circumstances where the person affected might reasonably expect that due care will be exercised.

He then went on to say that that duty of care is a non-delegable duty. And that is, relevantly, that the Commonwealth, by employing an organisation such as G4S, does not cease to be responsible regardless of whether the fault was that of the Commonwealth or the fault of G4S or the fault of someone to whom G4S delegated responsibility.

That proposition is supported by the Commonwealth's own immigration detention standards with which no doubt this committee is familiar. But you will remember that the Commonwealth's own detention standards currently enforced and applicable in respect of this incident say that immigration detention is administrative, that the service provider, in this case G4S, has a duty of care; but also say, these words, 'ultimate responsibility for the detainees remains with the department at all times' so that that acceptance of a non-delegable duty of care in law means that the Commonwealth may be liable with or without fault on behalf of the Commonwealth, if there is fault, in respect of the functions, which it has delegated to organisations such as G4S.

Further in the detention standards you will remember that under the heading 'Safety', there is a requirement for the Commonwealth to take reasonable steps to protect detainees, staff and visitors; to provide security for people within the facility; and staff are trained to recognised and deal with the symptoms of depression and psychiatric disorders and minimise the potential for detainees to do self-harm. Those are significant matters in respect of which individual rights arise, if there has been a breach of duty, whether by the Commonwealth or by its delegates, and there is a potential liability, we would say, on the part of the Commonwealth. As Greg has correctly said, that clearly applies whether the detention camp is in Australia or whether the Commonwealth chooses to detain people offshore. The duty of care is identical. Thank you.

CHAIR: Thank you Mr Morrison. If I can turn now to Civil Liberties Australia, thank you.

Dr Klugman : Thank you. CLA agrees basically with the duty of care contention put up by the ALA—that is the nub of our submission that we made to the committee. The policy of a detention system that promotes riots and death and which induces severe depression and severe mental health problems in adults and children is unsustainable. How many adult deaths will it take before we change policy? Ten? Twenty? A hundred? What about the deaths of kids? Five? Ten? Twenty-five? We are effectively destroying people mentally, even if they do not die physical deaths. Many will never fully recover from a year spent in detention.

Two decades ago, Australia had a bipartisan immigration policy. To be positive, Civil Liberties proposes that a small subset of MPs be invited to volunteer to work cooperatively towards immigration settings that mirror of those in place during the time when migration to Australia was important, successful and non-controversial. A model of such cross-party cooperation could be the recently formed Parliamentary Friends of the ABC group.

The fundamentals of a new, long-term policy would include: Australia welcomes migrants; Australia reserves the right to select migrants with the best possible chance of both making a success of their life here and of contributing positively to Australia's prosperity; and Australia will develop one or more major infrastructure projects, the vision and size of the Snowy Mountains scheme, to engage large numbers of migrants for twenty years. People will be obliged to work on this scheme, been paid and learning English and work skills, for a number of years before being able to then settle anywhere in Australia as citizens.

In addition, before committing to war or war like engagements, Australia will assess the likelihood of Australia's actions generating excessive migration to Australia and to other countries, decline to engage in such foreign actions, if the likely annual cost of managing additional migration attempts to Australia will equate to a known measure—that is, the monthly cost of maintaining troops in a war theatre.

To solve the short-term next five- or 10-year dilemma, Australia should address the following: acknowledge that it retains active control of and responsibility for the places for detaining people intercepted by Australian border cooperatives; establish control and a supervisory structure for each offshore detention place that is based on medical including mental health professionals having the largest and final say in how the centre is managed and operates to a minimal principle of at least doing the least harm to the people it detains.

CHAIR: Thank you, Dr Klugman.

Mr Mojtahedi : We thank the committee for the opportunity to appear to give evidence and address any issues arising from our written submission. If convenient, I might provide a short summary of the main points we made in our written submission. The Law Society does not necessarily oppose a durable regional processing arrangement but submits that any such arrangement must comply with international human rights standards. While the initial reason for establishing regional processing was to combat people smuggling and the loss of life at sea, we consider that seeking asylum is a human right and that all human rights are to be upheld equally. We consider that the stated goal of stopping deaths at sea to be consistent with the right to life, however we submit that this legitimate end should not be achieved through breaches of other international obligations.

As with many of the other submissions, we submit that if Australia is found to have effective control over the treatment of asylum seekers it has transferred to another country, it continues to be bound by human rights obligations that it has agreed to uphold. Even if it is found not to have effective control, it continues to be liable for the consequences of it actions in transferring them.

The committee submits that the ICCPR has drawn attention to the sending of a person to a country where they would be subject to torture or cruel and inhumane or degrading treatment or punishment and we also note that the ICCPR has identified the right to life and security of persons, prohibiting arbitrary arrest. It submitted that detention becomes arbitrary when it has continued beyond a period for which it cannot be appropriately justified. It is inappropriate or lacks of predictability.

The Law Society, as it stands, remains opposed to the PNG arrangements. However it does make a number of recommendations in its written submission should the arrangements continue. If regional processing is to continue, then the members of this committee may be required to turn their minds to consider what measures need to be adopted to ensure the incidents on Manus Island are not repeated. There being no simple answer, the Law Society submits, however, that it would be appropriate that protection mechanisms not dissimilar to those that existed in the Migration Act around the time of the Malaysian agreement be reintroduced to ensure that there are effective procedures for assessing the protection needs of asylum seekers, that asylum seekers are afforded protection pending determination of their refugee status determinations, and that any such arrangements meet relevant human rights standards. We would submit that the existence of those arrangements or standards should be subject to independent judicial review. I am happy to expand on any of those issues.

CHAIR: Thank you, Mr Mojtahedi.

Senator HANSON-YOUNG: Thank you all for appearing today and for your submissions. We have had a lot of evidence over the last few days about the specifics of conditions inside Manus Island camp, the conditions which asylum seekers live under, but also the conditions which a number of the staff have to work under as well and the various elements that led to the events on 16 to 18 February.

I am interested in the issue of duty of care in particular. We have heard from the Australian immigration department and the federal government that most of the responsibility has to fall within the realms of the PNG government because this is on the sovereign territory of PNG. Dr Morrison, you referred to the duty of care and the elements of liability. Are you aware of responsibilities that the government may have even in relation to things as simple as Comcare for both staff and asylum seekers working inside the detention centre?

Dr Morrison : We would apprehend that there would be rights both under Australian law and under PNG law in respect of injuries whether to detainees or to staff. If the Commonwealth government chooses to detain offshore, then its obligations continue. It does not avoid those obligations by employing a provider or by virtue of the fact that it is on another country's sovereign territory. It is also worth noting that the department has its own representatives present in a supervisory role, so it hasn't fully delegated responsibility to G4S in any event.

I have some particular knowledge of what went on at Woomera, because I was counsel in the Shayan Badraie case which had 66 days of evidence. There were some very significant similarities, particularly in relation to the riots, the fires and the breakout and what triggered them. It doesn't seem to us that there is any change in the Commonwealth's responsibility. There may be added responsibilities for others, but the Commonwealth remains responsible and remains responsible regardless of whose fault it is, provided there is fault, in respect of the functions which the Commonwealth purports to exercise.

Senator HANSON-YOUNG: Can we tease this out a little? A number of elements have been listed as underlying causes—not just in evidence given to this committee but backed up by the government's own independently commissioned report by Robert Cornall. One of the issues is the lack of infrastructure such as appropriate fencing, because people came over the fence. Is that a particular element that the federal government could be held liable for—the injuries that were sustained as a result of there not being appropriate security at the facility?

Mr Barns : I might come in on that, because I have dealt with that in the prison context. Most definitely—one of the issues, and in fact it arises in the context of prison cases is: if there is inadequate security to protect detainees from harm, whether that be lack of adequate fencing or that the fencing is non-existent, that is certainly an element that is taken into account in assessing whether or not the Commonwealth has breached its duty of care. So anything that relates to security—and, again, to take Andrew's point, it is non-delegable—even if G4S erected the fence and provided the security, the issue of security is critical in these settings. In fact one could argue that, in most cases where there is injury sustained by a detainee, it is because there has been a breach of security or, alternatively, no adequate security arrangements.

I just want to back up a point that Andrew made earlier about the offshore elements of processing. Having done some cases involving detention centres, it is a fact that the Commonwealth has its own officials in each of those centres and that they tend to have very senior roles. Just to reiterate: the fact that it is an offshore processing centre does not allow the Commonwealth to be able to wipe its hands of liability. It may be that liability is shared with the government of Papua New Guinea or with a service provider but it does not simply mean that, because you are offshore, you can sheet home responsibility to another party.

Dr Morrison : Can I just add to that, in respect of that question of sharing responsibility, the Commonwealth agreement with the service provider—and I have seen a number of these agreements, because they have been a source of significant litigation between the Commonwealth and service providers in relation to detention claims in the past—normally provides that the detention provider is to provide certain requirements and is to insure against the risk of being sued. However, those provisions have not stopped significant litigation between the Commonwealth and previous service providers in the past as to the ultimate sharing of responsibility when injuries arise, regardless of whose fault they were.

Senator HANSON-YOUNG: What I find quite intriguing about this is that, from evidence that has been given to us, the federal government's responsibilities seem even clearer. It was put to us by G4S that it was a restriction on their contract with the federal government that they could not erect higher and better fences. That type of infrastructure had to be approved, constructed and managed by the department of immigration here in Australia. G4S has put to us a number of pieces of evidence showing where it has requested the federal government to do something about the fences. In one example they also spoke about proper lighting. They also spoke about having CCTV, and a type of emergency logistics hub which would be separate to the centre. None of those things had even been started by the time of the February events. If they had to appeal to and request of the federal government those things, surely it is even clearer that that liability lies with the Australian department.

Dr Morrison : I think that is clearly so. If the Commonwealth does not delegate a particular area of responsibility it remains directly responsible for any breach of duty in that regard.

Senator HANSON-YOUNG: Even though it is on PNG sovereign territory?

Dr Morrison : It matters not. The Commonwealth has chosen to place people there. The Commonwealth is responsible for their care and safety according to its own detention standards. That is the test.

Senator HANSON-YOUNG: That was one underlying issue that has been put to us and submitted to us as a cause—

Dr Morrison : The only thing I would add to that is this: whether or not there has been a breach of the duty would have to be a matter as to what is reasonable, and what the evidence is in that regard is something we cannot comment on.

Senator HANSON-YOUNG: Sure. One of the issues that have been raised throughout evidence is the lack of training of staff and the impact of having a requirement under the contract with service providers that in the vicinity of 50 per cent of staff had to be employed locally from Manus Island, meaning that the pool of experience from which they were drawing was never going to be huge. Many of the locally employed young men working in the centre simply did not have the training, let alone the experience, to be appropriately acting as security guards inside the centre.

Dr Morrison : I think you had some evidence yesterday from Salvation Army employees as to, according to them, a total absence of training.

Senator HANSON-YOUNG: Who is liable for that?

Mr Barns : It is the Commonwealth. As Andrew just said, in each case the core of the issue is the fact that the Commonwealth's own standards say:

Ultimate responsibility for the detainees remains with DIMA at all times.

and:

In its operation of detention facilities the service provider will be under a duty of care in relation to the detainees.

That includes training, security, the way people are housed and medical services. It would be a range of services. Of course, we are not commenting on whether the duty was met in this case, but, in each of the examples I have just given you, the test remains the same—that is, the Commonwealth has a central element of control of people who are specially dependent and vulnerable and therefore they cannot be exposed to a foreseeable risk of danger. If they are exposed to a foreseeable risk of danger as a result of lack of training of staff, security or provision of medical services, then there is an arguable case that the duty of care has been breached. But, in all the examples that you might cite about what goes on in a detention centre, the answer is essentially the same: these are all matters for which the Commonwealth is ultimately responsible. In each and every case, it is a matter of assessing whether the training was up to a reasonable standard. It is not an absolute duty of care. It is not saying that the standard has to be the best in the world but it certainly has to be a reasonable standard of training for the circumstances in which the detainees find themselves and to ensure that the Commonwealth can meet its duty of care to keep people from harm.

Mr Rowlings : The similarity that comes to my mind is the pink batts situation, where the Commonwealth, through service providers, delivered a service. So wherever the responsibility ultimately lies there, surely it is similar wherever the Commonwealth service is delivered.

Senator HANSON-YOUNG: Can I touch on this issue of the young Salvation Army workers who were here yesterday. I was struck by the scant regard for informing these young Australians as to what they were getting themselves into after responding to an ad on Facebook that said this was going to be a fun holiday-type experience. There was no job interview. The young man did not even have to submit a resume or give his name until he arrived in Nauru. What is the requirement of the federal government to make sure that the people they have contracted are not employing people on a false pretence?

Dr Morrison : As Greg said, it is not an absolute standard. The Commonwealth's duty is to take reasonable steps to undertake those things which it itself has set as its detention standards. In respect of staff, those standards say:

Staff are trained to recognise and deal with the symptoms of depression and psychiatric disorders and to minimise the potential for detainees to do self harm.

But they also say that the staff have to be competent and have a required knowledge base—which means a degree of training. They have to understand their obligations and responsibilities, and they have to know the way in which the detention centre functions. It would be troubling if there was significant evidence that that was not the case. While the Commonwealth's obligations are not a standard of perfection, nonetheless the Commonwealth must take reasonable steps to ensure that service providers, and their delegates in turn, provide staff who meet those standards.

Senator HANSON-YOUNG: So can I go to that point, because I am obviously quite concerned about what has happened to these Australian expatriate staff, but this issue of taking reasonable steps, I think, leads to another issue. We found in evidence on Tuesday that the federal government still has not requested the subcontracts of those head contractors employed in Manus Island.

So when G4S held the head contract for security and running the detention centre they had a number of subcontractors which employed the bulk of the security guards. The federal government, even though they could under the contract with G4S require a copy of the subcontract—in fact the whole idea of having certain services subcontracted out had to be approved by the federal government—they submitted to us in evidence that they never saw what the subcontract was with the company that employed the bulk of the security staff. Where are the reasonable steps there?

Dr Morrison : I suppose the Commonwealth might argue that if it employs an apparently competent contractor which in turn subcontracts, G4S would, knowing the employment standards, as it must have done because it would be part of their contract, have to pass on those requirements in its own subcontracting. That would be the Commonwealth's argument.

The contrary argument, of course, would be the one that you have just put—namely, what steps did the Commonwealth take to make sure that happened, given that there has been a somewhat unhappy history, as we know, in relation to contracts at places like Woomera, Baxter and elsewhere? So those are the competing arguments.

Senator HANSON-YOUNG: We have identified that there are certain elements where there is an argument that the federal government has liability and that it is responsible, whether for the staff employed or indeed for the asylum seekers, particularly those who have endured serious injury as a result. How could that ever be actioned? This is a situation where we have asylum seekers remotely detained on Manus Island in PNG. They rarely can access phones. They have not been given information about their legal rights. The federal government says the information they get is it is all up to PNG. What are the practical steps to ensure that, if there is liability on the federal government's behalf, action can be taken in a practical sense?

Dr Morrison : Legal access so that people know and can protect their rights is a real problem. As we know, the Australian barrister who had a court order for access to the camp was ultimately detained, taken away, deported and told, as I understand it from speaking to him, not to come back to PNG if he valued his life—despite having a court order for access. That is very troubling.

In relation to the individual rights of those who were injured, it is very troubling that there has not been access to lawyers even for those brought back to Australia. In some cases the most seriously injured have not been able to speak to someone who can tell them what their rights are. The Australian Lawyers Alliance says that people should have access to legal advice and an opportunity to pursue any rights they might have.

Mr Barns : Just to pick up Andrew's point, we can compare this example to that of people who are involved in a bushfire. One of the things that governments do is to work with law societies and legal organisations to ensure that people get access to legal advice after the trauma of a fire. Those at Manus Island are in no different position. What the Commonwealth should do is to ensure that those individuals at Manus Island who have unfortunately been injured as a result of the activities at Manus Island are given the opportunity to speak with lawyers and to be informed of their rights.

You may find in some cases they have no idea. In fact, having dealt with many refugees over the years, they are very, very unsure and unclear about their rights. In a society such as ours, the ALA would take the view that everyone is entitled to speak with a lawyer, to receive advice, as Andrew says, and to be informed about their rights. Whether they act on it or not is a matter for them, but the people on Manus Island are in no different position to those on the mainland who are involved in a flood or a bushfire.

Senator HANSON-YOUNG: But they are in a different position, Mr Barns, because, despite the point you are trying to make, they should not be but they are.

Mr Barns : Yes.

Senator HANSON-YOUNG: They are because they are not able to be accessed.

Mr Barns : That is what I am saying: they should have the same access to lawyers. Mr Williams was the barrister who went to PNG. That was particularly troubling. One would have thought that the Commonwealth ought to be making it very clear to the government of Papua New Guinea that properly qualified lawyers from Australia ought to be able to have access to clients on Manus Island and they should not be subjected to violence or threats of violence, as was the case with Mr Williams.

Dr Morrison : That was Jay Williams. He had the benefit of a Supreme Court judge's order giving him access from PNG. That is an issue in respect of which the Commonwealth government ought to be talking to the PNG government about because it is simply unacceptable that these people have no access to appropriate legal advice.

Senator HANSON-YOUNG: It seems to me that there is a total sense of lawlessness in how the detention centre is being run and facilitated. There are all these elements of liability and there are all these contracts being held yet the basic rule of law cannot be implemented even if there are grounds.

Mr Barns : Having dealt with prisons—Senator Singh and I have dealt with prisons in Tasmania in the past—tragically, this is the case in detention generally. The reality of life in detention centres, whether they be jails or immigration detention, is that the rule of law is often not applied and these places can be extraordinarily capricious in the way in which people's rights are denied. The law has a very useful role. If people are aware of their rights, if they are aware that the Commonwealth has a duty and if that duty is enforced through the courts, then the law does have some impact in the way in which these centres are run. But the life inside a jail or a detention centre is, unfortunately for our society, a very difficult one for those involved. I have not been to Manus Island and, while I am sure it is horrific as it has been described by independent observers—

Senator HANSON-YOUNG: It is the worst I have seen.

Mr Barns : I have absolutely no reason to doubt that. What I am saying to you is it is critical that lawyers have access to these facilities and that they are able to work with individuals. For example, Justice Canning in the National Court of Papua New Guinea ought not to have his inquiry closed down because his inquiry was an opportunity to look at the issues of who is responsible for what and what is actually happening on Manus Island. The best way in which one can ensure that there is a lifting of standards in detention—jail or immigration detention—is to ensure that there is access for independent parties whether they be judicial inquiries, lawyers acting on behalf of clients and then taking up issues with the Commonwealth and others. It is fundamentally important and does not seem to be happening.

CHAIR: I would like to follow up a couple of things. I am interested to know where the right to speak to a lawyer resides in Australian law. We do not have a bill of rights and we are talking about people who are not Australian citizens. There is this inability for people to understand what their rights are, to be advised about their rights and then to assert their rights—and rights that cannot be asserted arguably are mere privileges or whims. Where does this right reside? More broadly, one of the things that I found disturbing about the evidence we have been hearing in this inquiry is the absolute ambiguity about the status of these people who are being held. They are not prisoners—or are they? If they are prisoners, what rights do prisoners have that these people perhaps do not have? Or do they have extra rights that prisoners do not have? I would like some discussion about that because it is clear to me that there is no certainty, no clarity, about what rights, if any, these people have, and following on from that is how they would then be able to assert those rights.

Mr Barns : Because of the incorporation of the European human rights treaties into British domestic law, there is no ambiguity about the right to legal advice. I do not think there is any ambiguity in Australia, and I think courts are constantly horrified when they hear that people are not able to have access to their lawyer. That is usually in a prison setting. Whether a person is a prisoner or is a detainee courtesy of immigration detention and therefore not classified as a prisoner, they are both in the same position. It comes back to the duty of care point we made earlier. They are vulnerable people, and the Commonwealth has assumed a role for the care of those people.

There is an arguable point that Australia's international obligations include the right of access to legal advice—that is set out in a number of the international human rights treaties—and that domestic law is to be read consistently with them. In my experience, courts generally take a very dim view of government authorities that prevent people from getting access to legal advice. I have not seen a case where lawyers have been denied access and then have sought to litigate that denial in order to get some form of injunctive relief to allow them into a prison or detention centre. I have not come across that. But I have come across detention facilities making it difficult for lawyers to access their clients or to see people simply by putting difficult times in place or severe restrictions on the amount of time that you can see a person. As I say, I think that the best protector of people's right to see the lawyer and to get legal advice in Australia, in the absence of any direct statutory obligation, is the courts. As I say, on a number of occasions I have said to the courts that I have had difficulty seeing my client, and courts are unimpressed by authorities that deny access to people to consult with their lawyers—and consult with their lawyers for the period of time that they need to consult, not five or 10 minutes.

Dr Morrison : I agree with Greg entirely, but to partially answer Senator Wright's question, at the very beginning of the Commonwealth's Immigration Detention Standards they say:

Immigration detention is required by the Migration Act and is administrative detention, not a prison or correctional sentence.

That is the important point. At 4.1 it says:

Each detainee is able to receive visitors except where the security and good order of the detention facility would be compromised.

We know that has been breached—it was breached appallingly at Woomera but it is also breached in correctional facilities in the Commonwealth. Greg has had much more experience of this than I have, but I have certainly seen cases where there has been inadequate access. That is an ongoing problem.

CHAIR: But these people are not in correctional facilities, are they? They have not actually been convicted of any crime at all.

Dr Morrison : There are many people who are out at Long Bay who have not been convicted of any crime; they are on remand.

CHAIR: That is a fair point, too. But these people have not even been charged with any crime. I just want to be very clear about the ambiguity that we have in terms of the status of these people. It is not that they are charged with any offence at all.

Mr Barns : No, that is right. Just on that, access to legal advice does not depend on a conviction or whether or not you have been charged with any criminal offence. Administrative detention—

CHAIR: I am not just talking about access to legal advice. I am talking about the evidence that we heard yesterday about when Amnesty attended a court hearing when some of these people were able to give evidence in court at Manus Island. The Amnesty representative said that one of the people actually said, 'It was the first time I felt human because I was able to speak in a court and be heard as a human being,' but they were not allowed access to talk to the Amnesty people in the court before they were whisked back to the detention processing centre. So it is not just about access to lawyers; it is about the ordinary, everyday social intercourse of people where we can speak to people without being prevented from doing that. It is a very, very basic human right. It is an ambiguity, isn't it?

Dr Morrison : It is a breach of the detention standards, too. But it is worth noting that the Commonwealth does have the power to detain and prevent from escaping under the Migration Act. That is the authority for keeping them.

Mr Mojtahedi : Can I make a quick point on that as well?

CHAIR: Please do.

Mr Mojtahedi : Certainly within the Migration Act there is a provision that allows a person who is in immigration detention to request legal advice. Under section 256 of the Migration Act, 'reasonable facilities' have to be made for the purpose of receiving that advice. I am not aware of whether similar provisions exist—and I assume that they do not—in PNG, which, again, at least from the law society's point of view, brings the issue back to the current provisions that allow for the transfer of people and the very limited safeguards in place for people being transferred. The safeguards that currently exist for people in our own detention centres do not exist for people in PNG. Again, it comes back to the very weak, in my view, provisions that are currently in place in the Migration Act.

Ms Young : As the committee would be aware, the High Court in the judgement of M70 in 2011 made a number of findings in relation to the so-called Malaysia solution. As the committee is also aware, the Migration Act was amended after that to limit the factors that the minister would need to be satisfied of before transferring someone to an offshore location. It is our view that an amendment to the Migration Act is appropriate, and I am talking specifically about section 198AB of the Migration Act. The safeguards in place there are insufficient. It is our view that, in order to ensure the safety of transferees, an amendment to that section would be appropriate to bring it in line with what it previously said before the decision of M70 in the High Court.

Senator HANSON-YOUNG: I want to clarify something on that particular point. Thank you, Ms Young. I think it is really important that in 2012 those amendments to the Migration Act were specifically designed to try to circumvent the rights as had been previously outlined for asylum seekers in Australian based detention centres. This is the whole issue. It was submitted to us by the Australian government that what we expect to be matter of course in Australian based detention centres and on Christmas Island is not matter of course and should not be expected and does not even have to apply in PNG and Nauru. That is the whole reason the government is spending $8 billion sending people there.

Mr Mojtahedi : If the committee looks at and considers the provisions for regional processing in the Migration Act you will see that, as it stands, the only considerations the minister really must have regard to are whether or not the regional processing country will expel a person to a country where they fear persecution, and whether there are any procedures in place for assessing their claims. There is nothing in there to ensure that the minister must have regard to other factors.

There is a very broad section that says that the minister may consider any other matters which he thinks are in the national interest but there is nothing in there that says the minister must consider the human rights standards in that country or that the minister must take into account whether or not there would be breaches of the ICCPR or the Convention on the Rights of the Child, the CAT or any other matters. We say that it would be appropriate that those considerations be in the act and that the existence of those circumstance be subject to judicial review. While it is appropriate for a minister to give assurances there is no reason why those assurances and the existence of circumstances should not be subject to independent judicial review.

Senator HANSON-YOUNG: Thank you.

CHAIR: Mr Mojtahedi and Ms Young, just remind me: did your submission give detail about the sorts of amendments to the Migration Act that you are talking about here?

Mr Mojtahedi : No; but I am more than happy to provide a short submission if that would be convenient.

CHAIR: I think that would be very useful. Thank you.

Mr Rowlings : I can answer very briefly, and it is a long shot. Most government contracts are written with a clause that says, 'This contract shall be interpreted under the laws that exist in the ACT.' That is what is in most of them, because that is where the contracts are enforced, as a rule. It is a long short as to whether the laws of the ACT, including the Human Rights Act would apply to the details of the contract between the Commonwealth and G4S or whatever.

CHAIR: That is interesting to consider. Did you want to say something, Dr Morrison.?

Dr Morrison : Only that I would rather doubt that the ACT has the extra-territorial capacity to extend the rights which exist in the ACT to other states, let alone overseas. It is a nice try but I do not think that would be the way round it. I agree with the Law Society's approach: these rights would be best reflected in the Migration Act because, after all—

Senator HANSON-YOUNG: As they used to be.

Dr Morrison : They are detained in PNG not pursuant to PNG law but pursuant to the Commonwealth Migration Act. So that is the act which ought to reflect their rights, since that is the act that detains them there.

Senator SINGH: I want to ask some questions in relation to basic human rights. I think in the Law Society submission you talk about minimum requirements. I am interested in this issue of minimum standards and whether there are any minimum standards under law. Mr Barnes referred earlier to the minimum standards when it comes to prisons. They are usually covered under the local state act—the Corrections Act. They could be minimum standards of how much time should be spent outside of the cell per day or those types of basic human rights issues. When we look at these transferees on Manus Island, are there minimum standards which apply to them? Are they covered under those international treaties? I am trying to get clear the breach of basic human rights that is occurring on Manus Island.

Ms Young : Perhaps I can speak to that. As we have outlined in our so recent submission, Australia has a number of international human rights obligations, and having no federal bill of rights where those rights are enshrined we look at the international instruments. The important right is the right not to be detained arbitrarily. In our view where administrative detention is prolonged it can become arbitrary. In the current situation, if genuine resettlement on to PNG is not possible—which seems less and less likely, given the February events and possible tensions or animosities with local populations—then the detention is very likely to be very prolonged indeed on Manus Island. So that detention could become arbitrary. As the committee is aware, the of the UN Human Rights Committee have made a number of findings in relation to immigration detention in Australia on the mainland, and we would submit that these findings are also relevant to the detention offshore, especially relevant considering the lack of durable resettlement opportunities on Papua New Guinea.

Of course there is also the conditions of detention. Also found in the ICCPR as well as the convention against torture is a prohibition against cruel, inhumane or degrading treatment or conduct. Obviously we are not casting any aspersions that there is that sort of treatment or conduct, but there is a risk of that. Such a regime is not subject to any meaningful scrutiny or oversight.

Senator SINGH: Okay, so there are a number of treaties that apply when it comes to minimum standards, whether it is the right not to be detained arbitrarily or the actual treatment of detainees while being detained. Have you looked at any detailed work, based on what you are aware of that has been occurring for the last number of months at Manus Island, as to the specific breaches of those treaties? Obviously we are talking about whether it is Australia or PNG having ratified those treaties—that is still an area which is unclear. But what might be the specific breaches of those treaties? Have any of you done any of that work?

Mr Mojtahedi : I suspect we are not in a position to make any specific comment about actual breaches. I suppose the point we do make is, just looking at the detention issue, if one is to consider the facts on the ground, if one forms the view that the detention of asylum seekers on Manus Island has continued for a period for which it cannot be appropriately justified or whether that detention lacks predictability, or whether that detention has become inappropriate, at that point that detention would be in breach of the ICCPR.

With other minimum standards which Ms Young spoke about, again, looking at the ICCPR, are the conditions that Australia is sending the asylum seekers to, would their treatment in the centre amount to inhuman or degrading treatment? If it does, then that again would be a breach of the ICCPR. I do not believe there are children or minors on Manus—are there?

Senator SINGH: There have been. It is just that the department was not aware of it, apparently.

Mr Mojtahedi : If there are then obviously the Convention on the Rights of the Child also becomes very relevant. I understand there is a best assessment guide that the department considers before it sends minors to processing centres. While it recognises that the best interest of the child is a primary consideration, it states that that consideration is outweighed by other considerations, including maintaining the integrity of the migration system. You have a situation where in justifying sending people to Manus Island you are breaching or not upholding certain obligations because of the integrity of the program.

Ms Young : To answer your question as to direct knowledge of breaches, the Law Society of New South Wales cannot comment. We do not have direct contact with detainees. We are just mentioning essential obligations. We have a clear human rights obligations on behalf of asylum seekers and risk potential breaches given the lack of scrutiny and oversight of the program.

Senator SINGH: This is probably a question to the ALA with respect to your submission about non-delegable duty of care. It has been shown to us from the evidence that has been provided that the administration is quite chaotic on Manus Island in the sense that it is unclear who is really in charge. Whilst the department has outlined that it delegated power to the PNG government and that they are in charge, every other witness we have heard from—the service providers, individuals and so forth—has made it very clear that the department of immigration is in charge. In fact, they have gone further to say that they have been gagged from giving certain pieces of information to detainees and so on, otherwise they would be exited off the island. So when it comes to this kind of arrangement versus actions on the ground, the two are incompatible as to the truth of what is going on. Where you talk about non-delegable duty of care, you are clearly saying that the Australian government does have a duty of care to the transferees, regardless of the department of immigration saying the PNG government are in charge of running Manus Island. Is that what you are saying?

Dr Morrison : Yes. Even if there were a full delegation, even if the Commonwealth had no representatives on site, did not have to authorise any expenditure on the centre, did not have to approve lighting, fencing—even if all of those matters were entirely delegated to G4S or some other contractor, nonetheless there would still be a non-delegable duty, we would say in law, given the authorities in the High Court but, in particular, given that the Commonwealth's own detention standard says ultimate responsibility for the detainees remains with DIMA at all times. The Commonwealth says it itself; it cannot avoid responsibility by delegation. But in practice, here as in Woomera and elsewhere, the Commonwealth has a presence on the ground, has a degree of control and therefore there may be direct responsibility and you may never have to get to that question of a non-delegable duty.

I should say there is some controversy about whether a non-delegable duty is delegable. There was a case in 2003 in the High Court, in Lepore, in which there were dicta which suggested it was; however, it did not overrule Kondis, which said it was not. The English Supreme Court in a recent decision in a case called Woodland v Essex County Council—the Supreme Court is the successor to the House of Lords as the highest court in England and Wales—said that non-delegable means in respect of your core responsibilities you remain responsible even if your delegate is the one at fault. If that is the correct state of the law then the Commonwealth is liable, whether or not it has a responsibility which has been fully delegated. But in this case there is a respectable argument at least that the Commonwealth has not fully delegated its responsibilities in any event.

Mr Rowlings : Can I just add to that. You are looking at the generic sense of whether Australia has responsibility. In our submission, we take it back the other way and say, 'What about Reza Berati; what was his expectation; what could he reasonably expect?' and look at it from that viewpoint. I think pages 2 to 6 from our submission will help you with answering that question.

Senator SINGH: My next question, therefore, is: is the Commonwealth liable for the death of Reza Berati?

Mr Barns : That depends on all of the facts being taken into account. I think what we are saying is, as Andrew has just been through, there is no doubt that a non-delegable duty of care exists, and it is a matter of applying the law and the Commonwealth's duty of care to him to determine whether or not there is liability. But I think, as with many of these cases, there are often arguments about the extent of the duty of care, the extent to which steps were reasonable. If I look at the deaths in custody perspective, generally they are pretty straightforward and simple—that is, the jailer owes a duty of care. If, for example, there is a death, then, generally speaking, the duty of care will lie with the prison. However, the prison authority or the state will often argue or will seek to argue that it took all reasonable steps to secure the safety of the person and that it could not be responsible for something which was extraordinary or out of the ordinary. I am not saying that happened in this particular case, but I think what we are simply saying is that the Commonwealth has a duty of care; it is non-delegable; and it would be in the mix when it comes to looking at the circumstances of that death and the responsibility for that death.

Dr Morrison : I agree with Greg. I will just add: what we are ultimately saying is breach of duty of care depends upon the facts. The Commonwealth's duty is to take reasonable steps. Whether or not there has been a breach of that duty will depend upon the ultimate factual situation, and it is something that we cannot comment on.

Senator SINGH: What is clear is that, regardless of the confusion about who is running Manus Island, who is in control of Manus Island, whether the department says it is the PNG government that they have delegated the control and the running of Manus Island detention centre to or whether it is others that say the department is in control in running Manus Island, the Commonwealth still has a duty of care for the transferees in the Manus Island detention centre.

Mr Barns : That is correct.

Senator SINGH: I want to ask about the issue of refugee assessments—this is, the processing. We have heard from evidence this week that somewhere around the beginning of the year there was a stop put on the processing of refugee claims, refugee status determinations. There seem to be about three processes: the initial interview, the CAPS process and then the refugee status determination process. Migration service providers were told not to pursue the RSD process. They were never called to do so, and therein lay the tension that started to manifest around early February or even earlier, because transferees were starting to realise that they were just going to be left there in limbo, without their claims being processed at all. What is the legal requirement in relation to the processing of asylum seekers who are seeking refugee status determination?

Dr Morrison : I am insufficiently familiar with it to say whether there is any specific timetable. I know they do have objectives in terms of processing, but I am not aware of any specific legal obligation to undertake that processing in a particular time scale. The one thing that occurs to me, having heard 66 days of evidence in relation to what happened at Woomera, was that after the detainees had been in Woomera for six months—and none of them had been interviewed, apart from their initial interview in Darwin before they were sent to Woomera—the trigger for the riots came, according to the evidence that I heard, whether that was correct or not, after a departmental representative was asked by the detainees: when are we going to be interviewed? When are we going to be processed? The answer from the departmental representative was: 'When we are fucking well ready.' And that started the riots in Woomera. Whether that is the same in this situation one cannot say; one would hope we had learnt something from what went wrong at Woomera.

There does appear to me to be some similarities in delays and processing, which add to the potential for problems and the need for greater security and greater medical attention—psychiatric particularly. All of those things enhance the duty of care, one would think. It seems to me that if there is going to be a delay, then the duty of care needs to be met in other ways.

Mr Rowlings : We address the issue briefly on page 7 of our submission, where we say that

…the UNHCR raised serious issues regarding the processing and resettlement arrangements for asylum seekers on Manus Island during their visit in January 2013.

That was before this incident happened.

Senator SINGH: And therein lies the difference between inmates incarcerated in a prison and detainees on Manus Island. Prison inmates know the length of their sentence, but the transferees on Manus Island have no clue about the timeframe.

Dr Morrison : Those on remand in our prison systems do not know how long they are going to be there, but at least they, through their legal representatives, have access to courts which will determine when their trial will take place. They may be told, 'You are going to need another three months for the Crown to get its act together and get its evidence ready' and they know they are going to have to wait. Detainees do not, and that is part of the problem.

Mr Barns : The Commonwealth is making a rod for its own back by not having an expeditious process. We all know that the deleterious impact on mental health and physical health of keeping people locked up for long periods of time with no end in sight is such that the Commonwealth has to enhance substantially the psychiatric, psychological and physical healthcare facilities in its detention centres. According to independent reports, it has been notoriously poor at this over many years. If the Commonwealth does not do so, then it opens itself up to a greater number of claims. The ALA FOI'd some figures from the Commonwealth Department of Finance which showed some millions spent in settling cases which involved detainees suing for mental and physical harm as a result of detention. In a sense, not having an expeditious process for dealing with asylum seeker applications is an expensive policy.

Dr Morrison : Can I just correct very slightly one thing Greg said—and I am sorry to do this, Greg. Detention per se does not give you a right to compensation.

Mr Barns : No, absolutely not.

Dr Morrison : Detention is lawful. It is inadequate medical care leading to injury or inadequate care according to the reasonable standard that the Commonwealth itself adheres to that gives you the right to sue. It is in that respect that there have been millions expended by the Commonwealth in compensating those who have been in immigration detention.

Mr Barns : Yes, that is right.

Ms Young : In regard to Australia's obligations under the refugee convention, we refer to the committee to the letter from the UN High Commissioner for Refugees which was sent to Chris Bowen, then the minister for immigration, dated 5 September 2012, where the High Commissioner for Refugees outlined a number of specific concerns in relation to Papua New Guinea and the capacity and the expertise of that nation to do a proper RSD process. Those concerns remain.

In terms of the jurisdictional issue, from an international perspective, if people are seeking protection within Australia's jurisdiction we have an obligation to assess their claims. Obviously there are some differing views on whether our jurisdiction extends to Papua New Guinea, but it would seem based on the facts before us that it does to some extent, which means Australia would continue to have an obligation to assess claims in a timely manner. It is clear from the Cornall review that at least one of the factors involved with the February unrest was frustration relating to processing arrangements.

I would also make a final point, which is that article 31.1 of the refugee convention provides that refugees shall not be penalised solely for reason of their unlawful entry to a country. This includes when they have come from other countries such as Malaysia or Indonesia that are not signatories to the refugee convention. I would also submit that the differential processing arrangements for those who are inside Australia versus those who are outside Australia is unnecessary, arbitrary and discriminatory, which is likely in breach of a number of human rights obligations that Australia has.

Senator HANSON-YOUNG: Going back to this issue of the liability of the federal government, particularly to those employed under the contracts that the federal government holds with a number of companies and organisations, it has been pretty clear from evidence from whistleblowers to this committee over the last couple of days that the staff themselves have experienced trauma and stress working in the facility, particularly from seeing the events that unfolded on 16 to 18 February. If they are Australian staff employed by contracts held by the Australian government, even if they have left their employer, is there an opportunity for them to file for some type of compensation from the federal government?

Dr Morrison : All I can say would be that the rather miserable benefits under Comcare may be applicable in respect of Commonwealth employees and deemed Commonwealth employees—and that is a further complex issue.

Senator HANSON-YOUNG: Comcare has previously ruled in the context of the Christmas Island riots that all staff, including contracted staff, came under Comcare.

Dr Morrison : I am not surprised. There was an aircraft accident many years ago in New South Wales where an aircraft which was searching for another downed aircraft took onboard a couple of casual people who just went up to assist. They were deemed Commonwealth employees, though they had never worked for the Commonwealth in their lives and were totally unaware they were working for the Commonwealth for this purpose and they were not being paid. So that is why I mentioned the question of deeming.

As to whether there are additional rights, there may well be contractual rights on the part of the employee against their employer, and there may be rights under PNG law as well. But all of these people, on the face of it, would seem to have recourse within Australia under our legal system because the relevant defendant, whether it is the Commonwealth or a contractor, would be present within Australia and therefore be capable of being sued within Australia. They do not have to bring their action in PNG, though they may be able to as well.

Senator HANSON-YOUNG: The young workers who we saw yesterday, who were employed under false pretences and without skills, gave clear evidence to this committee that they were counselling men who were suicidal without having any of the appropriate qualifications. They were not told that was the kind of work they would be doing. They could investigate the question of whether the federal government is indeed liable for the type of work they were required to do?

Dr Morrison : There are some initial steps you have to ask: have they suffered an injury?

Senator HANSON-YOUNG: Sexual harassment was one of the issues that was raised.

Dr Morrison : Yes. I did hear that evidence, but has it lead on to an identifiable psychiatric or psychological condition? If it has not, mere mental distress generally does not give you rights at common law. There is no straightforward answer to that. That is a matter which will depend upon a very detailed analysis of the facts and medical evidence.

Senator HANSON-YOUNG: A number of the witnesses in relation to the events on the night spoke of expatriate G4S staff not having appropriate protection equipment to deal with the riots as they were going on—things as simple as shoulder pads, kneepads, chest pads and protective shields—despite the fact that they had requested access to that equipment. Is that an area that you think could be taken up, if the federal government was requested to provide it and did not?

Dr Morrison : Let's look at it this way. Let's assume that G4S failed to provide protective equipment and that the absence of that protective equipment led to the injury of staff—

Senator HANSON-YOUNG: Which it did.

Dr Morrison : and it would have to be injury caused by the lack of that equipment—then, yes, on those assumptions there would be rights against the employer. But there may also be rights in respect of the non-delegable duty of care against the Commonwealth if the injury is sufficient to justify seeking compensation.

Senator HANSON-YOUNG: G4S's evidence was that they were required to request of the federal government more of that equipment and it did not come.

Dr Morrison : If that evidence is proven to be correct, then there may be a claim directly against the Commonwealth in negligence. It would not be a question of any form of non-delegable duty of care; that would be direct. But, again, the Commonwealth's obligation is to do what is reasonable. It is not a standard of perfection. If a request is made and it takes a little time to comply with that, given that it is a remote place, the Commonwealth may have some reasonable excuse for that. Those are matters which would need to be explored. There is no straightforward answer to those questions, which are ultimately matters of fact in establishing breach and causation, as distinct from duty of care.

CHAIR: Thank you, Dr Morrison, for being willing to take that one on. I would like to thank the witnesses from Civil Liberties Australia, the Australian Lawyers Alliance and the New South Wales Law Society. Thank you for attending and giving evidence today.

Proceedings suspended from 10 : 29 to 10 : 40