Common(wealth) Knowledge #68: Report finds Liberal government breached 'duty of care' to immigrants
Pressure mounts for the Albanese government to reverse over a decade of strict immigration laws.
In an exclusive report, the Guardian has obtained access to a 2020 report that criticised the then-Liberal/National Commonwealth government for breaching its duty of care towards immigrants, especially asylum seekers, in indefinite detention facilities. The argument presented in the report is that the Commonwealth government places illegal immigrants at an unreasonable risk of harm.
This is a stance backed up not just by political pressures driven by increasing support for rights-based legislation and respect for international treaties, but also by legal developments by Australian courts.
The independent report, penned by Robert Cornall, a former secretary in the Department of the Attorney-General with a decade of experience as an independent investigator under his belt, concluded that detaining immigrants convicted of criminal offences alongside innocent immigrants awaiting processing placed the latter group in unnecessary danger, and found that there were unreasonable delays, of up to 9 years, in processing immigrants.
These issues were compounded by an increased use of the ‘character test’ to cancel visas. This power, found in Section 501 of the Migration Act 1958 (Cth), was greatly expanded with the insertion of Section 501(3A) by the Migration Amendment (Character and General Visa Cancellation) Act 2014 (Cth).
Under this power, if an ‘alien’ is given a sentence of more than 12 months under any Australian jurisdiction, they will be placed in immigration detention, often alongside ordinary immigrants still being processed, and their visa will be subject to mandatory cancellation, unless they can pass the ‘character test.’
This usually involves proving that the offence is of certain nature that doesn’t justify revoking the visa. This places the burden on the ‘alien.’
The reference to ‘alien’ is derived from Section 51(xix) of the Australian Constitution, which grants the Commonwealth government legislative power over aliens. Authority from cases like Singh v Commonwealth (2004) and Shaw v Minister for Immigration and Multicultural Affairs (2003) suggests that Parliament can define the scope and nature of this term, but it is generally taken to refer to people who ‘owe allegiance to a foreign power,’ usually meaning non-citizens.
Love v Commonwealth (2020), discussed in Common(wealth) Knowledge #6, took issue with this stance, and exempted Aboriginal people from the aliens power. Justice Bell, in particular, was opposed to allowing Parliament to define the scope of ‘aliens.’ The ramifications of this ruling are ongoing.
Section 189 of the Migration Act 1958 (Cth) allows for the detention of ‘unlawful non-citizens,’ meaning an immigrant without a visa, and Al-Kateb v Godwin (2004) upheld the validity of indefinite detention. But the courts continue to remind the government that these immigrants are still owed some natural justice and procedural fairness in their treatment and the visa application process, with these questions appearing before federal courts almost daily.
It has also been well established that the Commonwealth government has total control over its detention facilities. The power to ‘maintain’ these facilities includes excluding visitors from bringing food into the detention facilities, just as the Victorian government can refuse to meet prisoners’ religious dietary requirements.
Given all this power, why is there a duty of care to asylum seekers?
The legal system has developed protections for parties with little agency in uneven balances of power. Australian consumer law has begun to protect individuals who sign ‘standard form contracts’ with corporations that they have no bargaining power with, and so cannot negotiate the terms of the contract. Those corporations are expected to act fairly and not abuse their power. And the same principle applies to immigration.
The vulnerability of illegal immigrants, including asylum seekers, in detention and processing facilities, who are required to submit to the Commonwealth government, means that there is a duty of care owed by the government.
Caltex Refineries (Qld) Pty Ltd v Stavar (2009) makes it clear that the vulnerability of a person or class of people, and their reliance on another party, can help establish a duty of care.
This duty of care means that the government cannot neglect its responsibilities towards those immigrants, nor can it act negligently towards them. Cornall alleges that both the delays of up to 9 years, creating a risk to their mental health, and the risk these illegal immigrants face by having immigrants detained because of their criminal sentences placed alongside them violates this duty of care.
Law on the tort of negligence requires proving 3 elements for establishing negligence: A foreseeable risk; that risk cannot be insignificant; and, given the facts of the case, a reasonable person would have taken precautions to mitigate that risk.
In establishing that last element, the court must consider the probability of harm occurring; the likely seriousness of that harm; the burden of taking precautions against that harm; and the social utility of the action that creates the risk of harm.
In relation to the last consideration, Cornall argues that it is much cheaper to manage asylum seekers in the community than in detention and processing facilities, estimating a cost of $11,000 for the former and $389,382 for the latter. This, he claims, outweighs any supposed benefit of keeping immigrants who, were it not for their lack of a visa before coming to Australia, did not otherwise break the law.
The existence of a duty of care can be found in international law, in treaties that Australia has agreed to, whether they deal with a general freedom of movement or immigrants specifically. While these treaties are not binding, there can be political and moral implications for non-compliance, and Australia has regularly been called out for its illegal immigration system.
The first steps toward establishing a duty of care have also been taken under common law.
In ARJ17 v Minister for Immigration and Detention (2018), the Full Court of the Federal Court overturned a ban on detainees possessing mobile phones, which was a policy introduced by Peter Dutton as the Minister, on the claim that it would facilitate escape. The court ruled that this was an unnecessary and unreasonable burden.
In that case, one of the three judges, Justice Rares, suggested that there was a duty of care to prevent detainees from suffering harm that is directly or indirectly caused by detention facility staff or Department of Immigration officers.
Similarly, in AS v Minister for Immigration and Border Protection , the government accepted that it had a non-delegable duty of care, meaning a duty that cannot be avoided, towards detainees for their healthcare.
This report adds to the mounting pressure that human rights and immigration advocacy groups are already placing on the Commonwealth government to reform the system.
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Al-Kateb v Godwin (2004) 219 CLR 562;  HCA 37.
ARJ17 v Minister for Immigration and Detention (2018) 257 FCR 1;  FCAFC 98.
AS v Minister for Immigration and Border Protection  VSC 593.
Caltex Refineries (Qld) Pty Ltd v Stavar (2009) 75 NSWLR 649;  NSWCA 258.
Commonwealth of Australia Constitution Act 1900 (Imp) 63 & 64 Vict, c 12.
Love v Commonwealth; Thoms v Commonwealth (2020) 270 CLR 152;  HCA 3.
McKechnie v Victoria  VSCA 158.
Shaw v Minister for Immigration and Multicultural Affairs (2003) 218 CLR 28;  HCA 72.
Singh v Commonwealth (2004) 222 CLR 322;  HCA 43.