More pressure on Comcare, DIBP over detention centre safety

By Stephen Easton

April 9, 2015

The civil rights-focused Australian Lawyers Alliance wants Comcare to “immediately investigate” allegations that sexual and physical abuse in detention centres was tolerated for 17 months by other parts of the government including the Department of Immigration and Border Protection.

The lawyers’ group says an open letter published yesterday by a group of 23 psychiatrists and social workers who worked at the Nauru detention centre is “the first direct evidence that the Commonwealth, with knowledge of the physical and mental harm being caused, did not take the appropriate steps to protect individuals from that harm”.

Comcare is responsible for monitoring health and safety in Commonwealth workplaces and taking enforcement action in cases of non-compliance with Work Health and Safety legislation. It has found no evidence of WHS breaches in several inspections of the offshore detention centres, despite consistently receiving far more reports of injury, illness and harm than for other workplaces it oversees.

On behalf of the ALA, outspoken asylum seeker advocate and criminal lawyer Greg Barns said in a statement there was a distinct possibility that the Commonwealth could be held liable by courts in future compensation cases:

“We also call on Comcare, which has a responsibility to ensure Commonwealth workplaces are safe for workers and detainees, to immediately investigate the matter.

“If an employer in the private sector failed, after being warned by professional advice, to take steps to protect employees or others who come onto the workplace, then they would be prosecuted.”

Another lawyer, former Victorian WHS prosecutor Max Costello, has previously suggested the agency is abrogating its responsibility to ensure the government keeps all people safe in detention centres. Costello also points out that the level of injury and illness to asylum seekers, both physical and psychological, would not be tolerated in other more ordinary Commonwealth workplaces. Barns broadly agreed with his views, saying he saw no reason why exemptions to the WHS Act would apply to the detention centres.

In response to those claims, a Comcare spokesperson told The Mandarin that “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 spokesperson explained that injuries and illnesses do not necessarily mean the WHS Act has been breached:

“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.”

However the sheer number of incident reports coming from detention centres without any identified breaches has led Costello to conclude they are obviously abnormally dangerous Commonwealth workplaces, and that Comcare is “asleep at the wheel”.

Yesterday’s letter alleges that a sexual assault against a boy by a detention centre employee in November 2013, was “substantiated” and reported, but the boy was kept in the centre where he was subjected to further abuse. The letter also alleges many other similar cases were reported to and supressed by the Department of Immigration and Border Protection.

The institutional characteristics of Australia’s detention centres — particularly the secrecy about around them — create a high risk of physical and sexual abuse of vulnerable detainees, according to psychiatrist Dr Peter Young, who signed the open letter.

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