Why Australia has a duty of care to asylum seekers on Manus and Nauru

The Australian government has long argued that it doesn’t have a duty of care to refugees on Manus Island and Nauru, because they’re held off Australia’s shores. 

And yet there are situations where this happens all the time: Australia maintains a duty of care to diplomats and soldiers abroad, even though they are also ‘offshore’.

Many people ask us how our government can argue that they don’t have a duty of care to refugees that they transferred elsewhere.

Our principal lawyer debunks the myth that has allowed the government to evade responsibility for the suffering it has caused:

“It’s an indictment on where Australian society is today, if you consider the harm that is being perpetrated on totally innocent men, women and children whose only ‘wrong’ is to get in a boat and flee a country where they’re under threat,” says Newhouse.

“The fact that our government officials are just turning their eyes from ten-year-old children who are actively attempting suicide just astounds me. I haven’t seen that anywhere in the world.”

Newhouse argues that the Australian government is in breach of both the Refugee Convention and the Convention against Torture. However, difficulty arises in holding the government to account because international laws are only imported into Australia through domestic laws.

“There’s no particular statute that says we are required to look after asylum seekers and refugees,” he says.

Nonetheless, Newhouse believes a duty of care for transferees exists under the common law.

“We’re arguing under the law that we put these people in harm’s way, exercising powers under our constitution. Therefore the Australian government has a duty to care for those people, and they’re in breach of it.

“If they were in Australia, there [would be] no doubt there is a duty of care to them… We have to prove that the Australian government’s duty of care extends to people in another country.”

Newhouse points to situations where the Australian government’s duty of care extends overseas all the time — for example to diplomats or soldiers abroad.

“We don’t see any reason why people who have been picked up by our government and transferred to Manus and Nauru aren’t covered by duty of care,” he says.

“What you’re seeing with the cases that we’re running and succeeding in, is that very slowly we are holding the government accountable for the torture and trauma they are putting these people through.”

The National Justice Project has been undertaking litigation on behalf of asylum seekers and refugees on Manus and Nauru, based on our government’s duty of care. If you would like to support us in our work, you can donate here.