Moss review: lawyers say Comcare should have intervened

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.

“It may be that a contractor or a worker might also have parallel obligations and be involved in the offending, but the great majority of parties prosecuted under Work Health and Safety legislation are these overall operators or head employers — 87% under the Victorian act in 2013-14 — so that’s why I say the Commonwealth itself would be liable,” he told The Mandarin.

A Comcare spokesperson confirmed that under the act, persons conducting a business or undertaking including the Commonwealth “can have duties that extend to extra-territorial locations” but says defining them can be difficult:

“Comcare has worked with the DIBP to define the application of the WHS Act to the operation of the regional offshore processing centres on Nauru and Manus Island as they are on foreign soil. In some of these workplaces (for example, Christmas Island), private contractors may owe duties under state or territory work health and safety legislation. They may also owe duties under the WHS Act to the extent the contractors are at work within the business and undertaking of the DIBP. The Commonwealth will continue to owe duties under the WHS Act regardless of the outsourcing arrangements.

“In the overseas environment, identifying the extent of the obligations owed under the WHS Act may be complicated where there are contractual arrangements with foreign entities or individuals. The extra-territorial application of the WHS Act is dependent upon the potential duty holder being an Australian citizen or that person’s actions having some relevant connection to Australia. Each set of circumstances needs to be considered on a case-by-case basis.”

“Those figures are overwhelmingly indicative of systemic offending by the Commonwealth.”

The former prosecuting solicitor questions whether the volume of health and safety incidents that occur in detention centres would be tolerated in any other Commonwealth workplace. Immigration reported 449 dangerous incidents, serious illnesses, injuries or deaths to Comcare in the 2013-14 financial year, with 374 or about 83% of those occurring in detention centres and all involving detainees, whose safety is covered as “other persons” under the act. “Those figures are overwhelmingly indicative of systemic offending by the Commonwealth,” Costello said.

He cites the Human Rights Commission’s recent findings on the effects of prolonged detention on children and the extent of reported sexual assaults in detention centres, including against children, as revealed recently in Senate Estimates, along with the allegations investigated by the Moss review, as further indications that Australia might not be taking all “reasonably practicable” steps to identify and eliminate or minimise health and safety risks in detention centres as required by the act.

Comcare made seven inspections of detention facilities during the 2012-13 financial year and one “liaison visit” to Nauru but found no breaches of the act. It visited Manus, Nauru and Christmas Islands on multiple occasions in 2014, most recently in October and November, but found no cause to take action on those occasions either. The Comcare spokesperson told The Mandarin:

“Generally, inspections focus on how the person with control or management is controlling risks related to identified hazards measured against the reasonably practicable standard required in the WHS Act. … The purpose of some of the visits was to conduct inspections of previously identified issues related to infrastructure and consultation. Inspectors were satisfied that recommendations made during earlier visits for these workplaces had been addressed and no other serious health and safety related issues were identified.”

Asked what it has done in response to the many indications that detention centres are high-risk places where lots of injuries take place, the workplace watchdog responded:

“Comcare assesses all notifications received from entities within our jurisdiction (including notifications from DIBP), as well as additional information, and intervenes under the WHS Act where appropriate. Not all notifications received by Comcare are notifiable in accordance with the definition of a notification under the WHS Act, and a notification or information received does not automatically mean there has been a breach of the WHS Act.

“An injury or illness sustained in a workplace such as an injury occurring in an offshore processing centre — even if it is a workplace under the jurisdiction of the WHS Act at the time — does not automatically mean that there has been a breach of the WHS Act by the Commonwealth. Comcare has not found any evidence of breaches of the WHS Act at the DIBP offshore processing centres.”

Costello finds it “astonishing” that with hundreds of incidents, the regulator found no work health and safety issues. “Of course,” he added, “to prosecute any offence under criminal law, you have to have evidence that can prove beyond reasonable doubt that, for example, the employer failed to fulfil its duties under the act, so it’s quite a steep test.”

Comcare rarely prosecutes when it identifies breaches of the act, especially in comparison to its state counterparts, but does initiate some enforceable undertakings.

“There are a few exemptions under the Act … It is hard to see how any of these could apply to detention centres.”

Criminal lawyer and Australian Lawyers Alliance spokesperson Greg Barns agrees with Costello’s broad argument. “The Commonwealth’s duty to comply with its own 2011 legislation is obvious,” he told The Mandarin. “There are a few exemptions under the Act; they relate to national security, defence and certain police operations. It is hard to see how any of these could apply to detention centres.”

Barns says the Moss review and the HRC’s Forgotten Children indicate a situation where the Commonwealth’s responsibilities under the WHS Act have either not been undertaken, or been ignored. “Given the evidence gathered by these two reviews, one would have thought that an investigation to examine possible breaches by the Commonwealth of the act should be an urgent priority,” he added.

The ALA also says the Moss report demonstrates the Commonwealth’s “non-delegable duty of care to people detained” and could expose taxpayers to “a swathe of future compensation claims” in contradiction to the government’s view. According to Barns, it shows Australia is really in charge of the facilities.

“The nature of the recommendations appear to indicate the chain of command,” he said shortly after the release on Friday. “This report may be of significant relevance in considerations of liability in the future, including vicarious liability.”

The Moss inquiry noted, among other things, a lack of concern for the safety and privacy of detainees in how the Nauru facility has been built, maintained, staffed, policed and governed. As part of its response, DIBP has committed to facilitating multi-party talks with the Nauruan government, featuring three other federal agencies, running a workshop with Nauruan police and officials to agree on a new “framework of responsibilities for incidents of sexual and physical assault”, and doing the same for a “child protection framework”. It is demanding service providers reassert the department’s social media policy to their staff and working to “strengthen existing contractual requirements relating to reporting data loss”, among many more actions that demonstrate the lead role played by the Australian government.

“Although the centre is based on another nation’s sovereign soil, the review reveals Australia’s level of oversight,” Barns said. “It is questionable as to how such a review can be conducted without recognition of Australia’s liability for the abuses which have allegedly occurred within it.”

The Moss report states that:

“The Secretary of the Nauru Department of Justice and Border Control, with the support of the [Australian] Department [of Immigration and Border Protection], and its contract service providers, is responsible for the operation of the Centre in accordance with the MOU.”

The MOU referred to is the unusual agreement between Nauru and Australia, which attempts to split authority evenly, but states that the two nations will each “conduct all activities in respect of this MOU in accordance with its Constitution and all relevant domestic laws”.

It’s hard to say what such an agreement is even worth in Nauru, where the legislative arm of government recently demonstrated its dominance over the judiciary. But in Australia, the intended meaning should be far clearer than it is.

Top image: Department of Immigration and Border Protection, used under CC BY, cropped from original.

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