Honoured in the Breach: Border Protection and the Australian Government’s Duty of Care

Emeritus Professor Richard Harding
1University of Western Australia, Crawley, Australia

As citizens  we all have views on Australia’s border protection policies. But in a democratic society the weight they carry is inherently no greater than those of any other citizen. However, as criminologists we possess an expertise that can be brought to the debate, not with regard to the policy as such (a “given” for these purposes) but as to how that policy is implemented on the ground. Specifically, is the Government meeting its duty of care to detainees, and what standards make up that duty of care?

This question is central to all aspects of detention – imprisonment, juvenile detention, police lock-ups, closed psychiatric wards and immigration detention. Even more crucial is the position of off-shore immigration detention centres, particularly Nauru and Christmas Island, for their very nature is that they are out-of-sight of normal scruitiny with the risk that standards can be breached with impunity.

This paper explores the question of what standards are properly applicable to off-shore detention centres. Relevant standards are identified. Four groups of these standards – clean and decent environment; respectful regime arrangements; mental health care; and processes for handling medical emergencies – are analysed drawing upon numerous sources. These include: Amnesty International reports; UNHCR reports; UN Rapporteur materials; Human Rights Watch observations; evidence to the Senate Inquiry into conditions at immigration detention centres; testimony of detainees; evidence to a Coroner’s inquest; and the class action (Kamasaee v. The Commonwealth) which was settled in 2017 by payment of $70 million in damages.

The conclusion is that the Australian Government, through the Department of Immigration and Border Protection, has been in egregious breach of appropriate standards and duty of care obligatioins in its management of off-shore immigration detention centres.


Richard Harding is Emeritus Professor of Law at the University of Western Australia. At various times he has been Director of the Australian Institute of Criminology, Foundation Director of the Crime Research Centre at UWA, and a member of trhe Australia Law Reform Commission. He was the inaugural Inspector of Custodial Services in Western Australia (2000-2008).

Since leaving that position he has advised extensively on correction policy and practice, and has been an expert witness in various cases involving prisoner/detainee litigation.

In 2013 he received the Society’s Distinguishewd Criminologist award.

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