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Home Portfolio Security & Justice Obey ‘the boss’ or obey the law? The dilemma of detention policy
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DEPARTMENTSDepartment of Immigration and Border Protection
TAGS Department of Immigration and Border Protection, Michael Pezzullo, Nauru, asylum seekers, Manus Island, detention policy
The DIBP secretary raised eyebrows defending the Commonwealth’s detention policy. But what if actually implementing it is a crime? A former prosecuting solicitor lays out a case for saying no to the minister.
The Department of Immigration and Border Protection is considering returning — to the Manus Island or Nauru detention centres — each of the 267 asylum seekers who are currently in Australia to receive medical (including psychiatric) treatment, or, in a few instances, to support a family member receiving treatment.
However, each “return or not return” decision is not a matter of pure discretion, it’s a matter of law — hence, as we shall see, the dilemma.
Specifically, the decision-making is governed by the criteria set out in the Work Health and Safety Act 2011 (Cth). The WHS Act applies to all detention centres because each one is a Commonwealth “workplace” as defined by Section 8.
“Having a draconian asylum seeker policy is one thing; implementing it by apparently criminal means is quite another.”
The Act sets out two decision-making criteria. The first criterion is “health”, including “psychological health”. The second is “safety” – which is particularly apt, given the evidence of assaults at both offshore centres (and one murder on Manus) and of sexual assaults at the Nauru centre, including 15 reported sexual assaults on minors between January 1, 2014 and June 30, 2015. (Evidence of Cheryl-Anne Moy, the department’s first assistant secretary for children to the Senate Select Committee concerning Nauru, July 20 2015.)
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Max Costello is a former WorkSafe Victoria prosecuting solicitor. He co-wrote submissions to the Moss review and the Senate Select Committee on Nauru abuses.
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No need to search that hard: the Nuremberg trials at the end of WWII have indicated quite clearly that you are not cleared of criminal conduct because you have “obeyed orders”. Sending, or maintaining, people to indefinite detention in concentration camps is a crime against humanity and against numerous international conventions, particularly in the case of children, even more so when those children were actually born in Australia.