September 22, 2016

Offshore crimes

By Max Costello
Offshore crimes
Is the government committing criminal offences by failing to ensure the safety of detainees on Nauru and Manus Island?

Australia’s two regional processing centres (RPCs) that house asylum seekers on Nauru and Manus Island are offensive in three ways, according to most critics. Their continued operation offends against basic humanity and morality, against fiscal rectitude, and against international human rights law (civil law) and conventions.

But the way those offshore RPCs operate – and onshore detention centres also, to some extent – is fourthly offensive: it involves apparent criminal offences against an Australian workplace law.

On 14 August 2015, I wrote two letters to Comcare, the health and safety regulator for all Commonwealth workplaces (including both offshore and onshore ‘detention centres’). I asked Comcare to lay charges against the Commonwealth of Australia and/or its agency, the Department of Immigration and Border Protection (the Department) under the Work Health and Safety Act 2011 (Cth) (the WHS Act).

Charges would allege breaches of section 19(2) of the Act.

Section 19 imposes a “primary duty of care” on workplace operators to “ensure, so far as is reasonably practicable”, that “the health and safety” of both “workers” – section 19(1) – and “other persons” – section 19(2) – is protected from workplace-related risks. “Health” includes psychological health.

At all “detention centre” workplaces operated by the Commonwealth, those “other persons” are the asylum seekers who reside there.

According to sections 17 and 18, “reasonably practicable” means that all identifiable risks must be eliminated, or, if that can’t reasonably be done, at least minimised (controlled).

In my letters I invoked Section 231 of the WHS Act, which provides that “a person [who] reasonably considers that … a [serious] offence [has occurred] … and no prosecution has been brought … [within] 6 months … may make a written request to the regulator that a prosecution be brought”.

On 12 September 2016, Comcare said its “inquiries are continuing”. So, no prosecution yet.

The letters were detailed and legalistic, but in essence they pointed to two areas of apparent breach of the section 19(2) “other persons” duty.

One letter alleged a failure, at onshore detention centres, to protect detainees – in particular children – from psychological health risks arising from prolonged detention. It was “reasonably practicable”, the letter said, to have eliminated that risk – by removing them from detention.

The other was about the apparent failure – at the Nauru RPC and especially in relation to women and girls – to prevent exposure to a risk to their health and safety, specifically the risk of rape and sexual assault. Various measures, including the training and supervision of staff as stipulated by section 19(3)(f), could have eliminated or at least minimised that risk.

Section 12F(3), which gives the Act “extended geographical jurisdiction”, protects workers and other persons at Australian government “outpost” workplaces in countries, such as PNG and Nauru, which don’t have a law equivalent to the WHS Act.

That extended geographical protection is buttressed by sections 14 and 272. They prohibit a duty holder such as the Commonwealth/the Department at RPCs from transferring or contracting out a duty, with section 272 adding that any attempt to do either is “void”.

The Department’s Annual Reports matter-of-factly acknowledge that (a) the WHS Act’s duties and obligations apply offshore and onshore (including having to report any “notifiable incident” (death, serious injury or illness) to Comcare); and (b) Comcare conducts inspections.

For example, the 2013–14 Annual Report, at page 280, records that “Comcare conducted regulatory inspections at … [five onshore] IDFs [Immigration Detention Facilities]. Comcare also carried out inspections on Manus and Nauru.”

As well, page 280 displays a table, headed “Incidents notified to Comcare under sections 35, 36 and 37 of the Work Health and Safety Act 2011”, which states how many incidents were notified in 2011–12, 2012–13 and 2013–14.  

Then follows this revelation: “It should be noted that 83 per cent (374 out of 449) of incidents the department notified to Comcare in 2013–14, including deaths, involved detainees and transferees in IDFs and OPCs [i.e., RPCs], and did not directly involve workers”.

So 83% of total notified incidents involved “other persons”, asylum seekers. Yet Comcare, despite inspecting IDFs and RPCs, had brought no asylum seeker-related prosecutions, according to its 2013–14 Annual Report. Hence my two “please prosecute” letters.

That 83% statistic should have prompted a section 19(2) compliance blitz. Instead, Scott Morrison, who was then the minister for immigration and border protection, claimed that the responsibility for the health and safety of residents of RPCs rested with the governments of PNG and Nauru. His successor, Peter Dutton, still makes that claim, as does the prime minister.

No journalist yet seems to have done the homework – to find that the WHS Act applied offshore, and to read key sections of the Act – to challenge these claims. Neither Morrison nor Dutton has been asked to square the claim with  section 12F(3)’s “extended geographical jurisdiction”, section 14’s “A duty cannot be transferred to another person” and section 272’s “[any purported] transfer to another person … is void”.

If the Commonwealth government had been thus exposed in 2014 as having an explicit statutory duty to safeguard the health and safety of RPC detainees, we might have seen a dramatic improvement in the quality of the political debate around asylum seekers and refugees. More vitally, we might have seen an improvement in the quality of the treatment of asylum seekers on Manus and Nauru.

Since I wrote to Comcare in August 2015, some onshore IDFs have been closed and, as the Department’s monthly Immigration Detention and Community Statistics Summary for 31 July 2016 records, those still operating hold almost no children.

Refugee Rights Advocate, Pamela Curr, of Melbourne’s Asylum Seeker Resource Centre, says that nowadays, the main WHS risks for people in the onshore detention centre regime include prolonged detention, confining bedrooms or rules, and ultra-abrupt transfers between centres, with detainees sometimes being transported wearing pyjamas, and/or in handcuffs.

But from all accounts, the most pervasive and damaging risks are mainly offshore – although RPC numbers are falling, according to the Department’s ‘Statistics Summary’ records.

On 31 July 2015, Manus had been housing 942 men; a year later, 833. On 31 July 2015, there had been 111 women and 87 children (plus 439 men) at the Nauru RPC. By 31 July 2016, there were 55 women and 49 children (plus 307 men).

So, fewer female abuse “targets” on Nauru: but whether the sexual abuse risk has persisted is not public knowledge; it’s privy to the Department (and, one hopes, Comcare investigators).

Alongside falling numbers, the ‘Statistics Summary’ shows rising percentages of prolonged detention.

The number of persons who, on 31 July 2015, had been detained for 730 days (2 years) or more was 394, or 19.6% of detainees. A year later the raw number had reduced slightly to 376, but the proportion had increased to 23.7% – a very concerning trend. The ever-increasing psychological health risk facing asylum seekers in already prolonged detention is reminiscent of the ever-increasing physical health risk facing fish in a drought-shrinking pond.

The risk is now so dire that Paris Aristotle, CEO of the Victorian Foundation for Survivors of Torture and one of Prime Minister Gillard’s three-person expert panel on refugee issues, issued the following warning on 1 September 2016.

Our extensive experience working with refugees indicates strongly that the primary cause of … decline [in mental health] is the pervasive sense of hopelessness about any prospect of a decent future for themselves and their families. Under the current circumstances the pace of deterioration is likely to accelerate, posing an even greater risk of serious long term mental health problems.

If the governments involved don’t take swift action to restore hope, we believe it is highly likely that many more [adults] will express their despair by attempting to harm and kill themselves. We also hold grave concerns that children and young people in Nauru will respond in the same ways.

Endorsing that warning in The Age on 11 September 2016, professor Patrick McGorry, president of the Society for Mental Health Research, wrote:

Suicide is always the end result of a complex cocktail of social entrapment, unbearable emotional pain, anger and despair. … The asylum seekers on Manus and Nauru are drinking this cocktail every day. The mental state and behavioural responses that we read about are inevitable and beyond their control, or indeed that of any system that can be put in place to care for them.

There’s a parallel criminal law perspective. If the Commonwealth/the Department does not remove long-residence asylum seekers from RPCs (and onshore centres) then, in relation to each such individual, there is, according to section 31(1) of the WHS Act, an ongoing situation of apparent “reckless” non-compliance with the section 19(2) duty of care.

31 Reckless conduct—Category 1

(1)  A person commits a Category 1 offence if:

(a)   the person has a health and safety duty; and

(b)   the person, without reasonable excuse, engages in conduct that exposes an individual to whom that duty is owed to a risk of death or serious injury or illness; and

(c)   the person is reckless as to the risk to an individual of death or serious injury or illness.

(Note: “conduct” means act or omission, and “person” can mean Department. “Category 1” is the Act’s most serious and egregious “non-compliance with duty” offence.)

Penalties follow. If found guilty of the above offence, the Commonwealth/the Department could be fined up to $3 million, while the secretary or other very senior officer could be fined up to $600,000 and/or imprisoned for up to 5 years.

Questions arise for several key players in and around this scenario, which amounts to the implementation of government policy by apparently criminal means.

Prime Minister Malcolm Turnbull called a double dissolution election over the “deeply serious” issue of apparent ongoing non-compliance with a workplace law – by a trade union. Will he do anything to deal with the same issue of apparent ongoing non-compliance with a workplace law – by a department within his own government?

If not, will the ex-police officer Minister Peter Dutton overseeing the Department instruct it, on his own initiative, to obey the law – by removing long-residence asylum seekers from places of grave danger to their health and safety? Will he also promptly and appropriately resettle the languishing Manus and Nauru refugees?

If Minister Dutton doesn’t take that “remove RPC residents” initiative, will Secretary Mike Pezzullo, the Department’s most senior officer, write to his minister (if he hasn’t already) urging such removal – in compliance with his own section 27(1) duty as “an officer [who] must exercise due diligence to ensure that … [the Commonwealth/the Department] complies with [each] duty or obligation” that it has under the WHS Act?

If not, will Comcare prosecute (perhaps at the urging of Employment Minister Michaelia Cash)? Senator Cash has portfolio responsibility for both the Act and Comcare, and has reminded unionists that “We must all comply with workplace law”.

If the above players don’t do their duty, thus (respectively) apparently committing serious crimes or failing to uphold the rule of law, will the media do its homework, expose the derelictions of duty, and call those in authority to account?

Max Costello

Max Costello was a WorkSafe Victoria prosecuting solicitor and RMIT Employment Law lecturer. He co-wrote submissions to the 2014 Moss review and the 2015 Senate Select Committee on Nauru abuses.

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