Moss review: lawyers say Comcare should have intervened

The Commonwealth might be liable under both civil and criminal law for consistently dangerous conditions in offshore detention centres, and lawyers say it is breaking its own workplace safety laws. The watchdog, Comcare, says it’s not that simple.

The Moss review into allegations of violence, sexual assault, exploitation and intimidation made by asylum seekers detained in Nauru has given the Department of Immigration and Border Protection 19 changes to implement. It’s also led to renewed calls for the Commonwealth workplace regulator to act on health and safety in detention centres.

Max Costello, a former prosecutor with the Victorian WorkCover Authority, believes immigration detention facilities are clearly unsafe and that federal workplace regulator Comcare has apparently been “asleep at the wheel” in relation to monitoring and enforcing compliance with the Work Health and Safety Act 2011 in them. He argued as much in a joint submission to the Moss inquiry and in an article anticipating its release, which was shared online by human rights lawyer Julian Burnside with the approving caveat:

“I do not normally post other people’s writing on my blog. But this is important…”

Regular incidents of harm coming to asylum seekers in detention centres continue to fuel concerns in the legal fraternity about the Commonwealth breaching international law, or being liable for compensation in future civil claims. But Costello thinks it’s highly likely that criminal breaches are also taking place, in the form of systemic non-compliance with the WHS Act. He points out that detention centres are Commonwealth workplaces like any other under the act, and says the Commonwealth has the “primary duty of care” to ensure compliance with the act as the overall operator of the sites.

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