Jurisprudential Sources For Establishing Standards Of the Duty of Care In Offshore Immigration Detention Facilities

19 Pages Posted: 27 Mar 2018

See all articles by Richard Harding

Richard Harding

The University of Western Australia Law School

Date Written: 2018

Abstract

The article explores how to tease out reasonable standards. It is shown that in other areas relating to detention, Australia’s embedded approach is that domestic standards should be “informed by international obligations.” It is argued that this approach is integral to standard setting for immigration detention. The recent decision to ratify OPCAT (the Optional Protocol to the Convention against Torture) has fortified this policy and expectation. Drawing upon Australian material - including internal Departmental guidelines, contract provisions, inspection reports possessing persuasive status – and also upon comparable developments in other jurisdictions - notably the UK – it is appropriate to construct the detailed standards that go to make up a “duty of care” regime. These are set out for the Manus Island context. The Australian position that international obligations do not find their way into domestic law unless and until they are expressly legislated has thus not been an impermeable barrier against absorbing decent standards into offshore immigration detention practice.

Keywords: immigration detention, offshore detention facilities, Australia, Manus island, international obligations, domestic law

Suggested Citation

Harding, Richard, Jurisprudential Sources For Establishing Standards Of the Duty of Care In Offshore Immigration Detention Facilities (2018). University of Western Australia Law Review, Vol. 43, No. 1, 2018; Criminal Justice, Borders and Citizenship Research Paper No. 3149478. Available at SSRN: https://ssrn.com/abstract=3149478

Richard Harding (Contact Author)

The University of Western Australia Law School ( email )

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35 Stirling Highway
Crawley, Western Australia 6009
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