Legal challenge likely in the wake of Manus incident: Academic

Transcript

A law professor says it's almost certain the Australian Government will have to face a legal challenge over an alleged failure of its duty to care and protect asylum seekers.

Sydney University's Professor Mary Crock says Australia's asylum seeker policy of offshore detention is a grotesque breach of human rights law.

But she told Jamie Tahana the question of whether the protection of the asylum seekers lies with Australia or Papua New Guinea, is very murky.

MARY CROCK: This is actually a very interesting question. Australia nominally has sent these people to Papua New Guinea to be processed and cared for by PNG but in fact the care of the asylum seekers is being undertaken exclusively by individuals who are contracted by Australia, paid for by Australia, and in fact we have had our minister for immigration say just the other day 'well as long as they stay in the perimeter of the camp they can expect to be protected but not if they go outside'. So the language coming from our government suggests that they are taking responsibility for people inside the camp but in terms of legal responsibility under international law that's one thing, under PNG law, that's another, it's all very very muddy.

JAMIE TAHANA: And if witness statements are correct in saying that police and PNG locals entered the camp and the attacks happened inside the compound, would that bring it under Canberra's responsibility?

MC: Well, technically this whole area belongs to PNG and Papua New Guinean law runs as a matter of contract, Australian forces, Australian companies, actually they are not even Australia companies, but companies paid by Australia are controlling the area. So, legally it is very messy from a domestic law point of view. From an international law perspective, these people I would have thought are plainly Australia's responsibility. They are our asylum seekers. We have sent them there, we are paying for them, we are actually housing them so from a matter of international human rights law, it's very clear in my mind anyway.

JT: So would this suggest a breach of international human rights law, the duty of care for these asylum seekers?

MC: I think the whole arrangement is a grotesque breach of human rights law. It is a breach of refugee law as well. These people under refugee law are either refugees or they are not. In fact, we have made no steps to ensure that they are being speedily processed to determine whether they are refugees or not. Nobody has been processed there yet. That is supposed to be being done under Papuan law but again it's Australia's responsibility really as long as they were our refugees being sent there, in my view.

JT: So is this a case of Australia trying to deflect responsibility to a third country, being PNG or Nauru?

MC: Absolutely and we are doing it punitively in order to deter people from coming to Australia. We have had the grotesque situation of the government almost boasting of the terrible conditions on Manus Island - making it very public in the hope that this is going to deter people from attempting to get to Australia to claim asylum by boat.

JT: And those people sent to camps, now we have those injuries and one death, could there be a case for a legal challenge here?

MC: I am sure there will be a legal challenge as day follows night, somebody will bring an action. Again the grounds under which that is done will be very interesting. I would have thought probably under tort law on the grounds of negligence and the breach of a duty of care for these people. The contract issues are very complicated because the people who are being cared for aren't actually party to the contracts that have been done for the care of these people so it is complicated. Those devices though are not very useful in terms of getting immediate results for the individuals incarcerated there. They are really a bit like a wet feather frankly, it takes ages and ages for the complaints to be heard and then Australia is really not bound, there is no recourse that can force Australia's hand in these respects.