The Department of Defence faces three new charges over workplace health and safety breaches after an investigation by Comcare, but some lawyers continue to wonder why the federal regulator has never gone after the Department of Home Affairs.
Top barrister Robert Richter QC recently joined several lawyers who find it more than a little surprising that Comcare has never found the department has breached the federal Work Health and Safety Act 2011 through its management of the immigration detention system, despite a constant stream of serious physical and psychological injuries both in Australia and offshore.
Richter finds it “extraordinary” Comcare has never tried to have the department prosecuted. He thinks the hundreds of injuries over the years strongly indicate “egregious failures” of health and safety in Commonwealth workplaces that are part of the immigration system, which have also been consistently ignored by the relevant ministers. According to a group of doctors who recently analysed official records, at least 75% of asylum seekers and refugees in the offshore processing system have a serious physical health condition, and rates of psychiatric illness are also extremely high.
The latest charges against Defence relate to an incident in Townsville two years ago. A three-tonne piece of equipment fell on an unfortunate Air Force officer, severing one leg and badly injuring the other. This follows Comcare seeking prosecution of Defence in May, over the 2017 death of a soldier in a bungled live-fire training exercise. In both cases, the department was accused of three offences with a maximum penalty of $1.5 million each; in this latest case, it is accused of failing to “provide safe systems of work” and conduct adequate risk assessments.
These are classic cases for a WHS regulator like Comcare. Its investigations followed serious injuries to a person doing their job, which indicated there was a good chance their employer had failed to fulfil its duties under the act to identify and manage health and safety risks.
But as Richter noted, those duties extend to the health and safety of anyone who happens to be in a regulated workplace, not just people who work there. The Commonwealth act also applies outside Australia in certain situations.
“Now, there’s no question that detention centres are workplaces and they’re covered by the act — certainly the ones in Australian territories, and in Australian states,” he said on ABC radio in late July.
“I believe that the overseas centres fall under that — except that there has been been some changes for Papua New Guinea, for Manus Island. But … it applies to Nauru; there’s no doubt about it.”
The renowned silk said it was an “outrageous” situation and noted the dogged campaign of a former Victorian WHS prosecutions solicitor, Max Costello, who has spent several years agitating for the regulator to do more to uphold the health and safety of people detained by Australian immigration officials, including those held offshore.
The Mandarin has covered Costello’s arguments, which were endorsed by renowned human rights lawyer Julian Burnside, along with Comcare’s responses in a series of articles since March 2015.
The Australian Lawyers Alliance soon picked up the issue and ran with it, and the regulator hit back. This dialogue was repeated a couple of months later, with the ALA ratcheting up the pressure with more serious claims based on a freedom-of-information release, and Comcare’s chief executive responding in much stronger language too.
In 2017 a Senate inquiry heard these arguments and also questioned what the regulator had been doing with regard to facilities used for the offshore processing of asylum seekers. The majority of the committee, made up of non-government parties, concluded the “structural complexity” of the system had led to “an unacceptable lack of accountability and transparency and a failure to clearly acknowledge where the duty of care in relation to those asylum seekers and refugees lies”.
Richter’s radio interview took place on a significant day — July 30 — the expiry of a statutory time limit for Comcare to seek prosecution over the 2014 death of asylum seeker Hamid Khazaei in Brisbane, following a serious leg infection that developed on Manus Island. This is, of course, only one of a very large number of injuries suffered by the unwilling guests of the Department of Home Affairs over many years.
Queensland Coroner Terry Ryan found the death could have been prevented as it resulted from slow and inadequate medical care and concluded the department had clearly failed to meet its responsibilities.
Ryan’s report details the circumstances leading up to Khazaei’s death in excruciating detail but also notes a coronial inquest is a “fact finding exercise and not a process for allocating blame” and that the “procedure and rules of evidence used in criminal and civil trials are not adopted”. It was up to Comcare to decide if the death was preceded by criminal breaches of the WHS Act and gather the evidence required for prosecution if necessary. It had about one year to do this, but now time is up.
In Richter’s view, the Coroner’s recommendations “make it quite clear that there had been egregious failures to take care of the health and safety of that person” but Comcare disagrees. It told Max Costello earlier this month it had considered Ryan’s report on Khazaei’s death.
“After assessing the Coroner’s Report into the death of Mr Khazaei … it did not appear to Comcare that an offence had been committed against the WHS Act,” he was told by the agency’s general manager of regulatory operations, Justin Napier, on behalf of chief executive Sue Weston.
“Therefore, the CDPP was not approached to lay charges on Comcare’s behalf. Despite this position, Comcare will nevertheless undertake a planned program of verification inspections which has been designed to confirm that the Department of Home Affairs has taken steps to address the recommendations as outlined in the Coroner’s report.”
Costello thinks Comcare should have gone beyond the report and asked the Coroner for all the primary evidence and witnesses he could provide from his inquest, then requested information from the department, to make its own assessment of whether charges should have been laid. Much of this would have been quite simple, in his opinion.