Fundamentally, regulators with responsibility for maintaining compliance with a specific piece of legislation need to know that act inside out, including what powers it gives them and where they apply.
But when the federal workplace health and safety regulator Comcare is asked about its hesitance to assert much authority regarding the health and safety of asylum seekers detained offshore by Australia, the answers are almost impenetrable.
Its evidence to the recent Senate inquiry into serious allegations of abuse, self-harm and neglect of asylum seekers on the two islands reveals how it has been stalled by the complex administrative arrangements around the regional processing centres.
The regulator has previously fended off the suggestion it has abrogated its responsibilities with regard to the centres. Statements to The Mandarin, however, did little to clarify the situation and over two years later, the confusion remains.
The non-government senators on the Legal and Constitutional Affairs committee didn’t find the agency’s explanations of how the Commonwealth Work Health and Safety Act applies in the offshore detention centres very edifying either.
Their majority report recommended a review of the act “to ensure that Comcare can exercise its regulatory powers in relation to Australian workplaces outside Australia’s geographical jurisdiction, in a timely and straightforward manner”.
Government senators argue a WHS Act review is beyond the scope of the inquiry and say there is no evidence that Comcare has failed to do its job properly. Their dissenting report dismisses the whole thing as a “politically-motivated public-relations stunt” and rejects every recommendation.
Greens senator Nick McKim went the other way, supporting the majority report but also adding additional comments and recommendations in line with his party’s platform. There was literally something for everyone in the final report.
Leaving aside the politics of “stop the boats” policy — which was recently criticised by the United Nations special rapporteur on human rights — health and safety matters and Comcare’s role featured heavily in the hearings. The committee considered a huge number of reported incidents such as those in The Guardian’s Nauru Files.
It is clear that offshore detainees have faced and still face serious health and safety risks from a wide range of sources, most of which are completely beyond their control but seem within the government’s power to address.
New leaks this week concern the bizarre process to shut down the Manus Island centre which involves “conditions and entitlements” used as incentives for compliance, and extensive surveillance at the centre that should make it easier to maintain health and safety, but seems heavily focused on maintaining military-style operational secrecy.
Clear as mud
The majority report argues regional processing relies too heavily on the private sector and is “deeply affected by structural complexity” that has allowed “clear failures by the department in administering the current policy in a safe and transparent manner” to occur:
“This structural complexity has 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.”
The government might be happy the regional processing centres have been largely untroubled by Comcare, but this is beside the point. It’s an independent statutory body; this aspect of its role should be clear as any other.
When this issue arose in 2015, Comcare told The Mandarin it had already “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 March, the regulator told the committee its efforts to clear up how the act applies were still ongoing and had involved asking the department for a mass of information, which is detailed in the report.
“In the material that was provided, there were gaps in the information which prevent us from finding a definitive view of where some duties lie or do not lie, and that is the subject of further inquiries,” said Anthony Blucher, senior director of the agency’s regulatory operations group.
The committee heard Comcare needed the department’s consent to visit the centres, and commented “it is not appropriate that a regulator should have to rely on the goodwill of the department” to do its job.
Comcare’s take on the situation, according to acting CEO Lynette MacLean, is that DIBP has duties under the act as a “person conducting a business or undertaking” (PCBU) but “the extent to which the DIBP owes duties, and the extent to which they have control of the operations of RPCs, particularly as they relate to detainees” is not clear.
“Understanding the extent of these duties is complex and needs to be assessed on a case-by-case basis, as it involves relationships with foreign governments, foreign and Australian contractors, and employees of DIBP,” MacLean added.
The committee heard of some very serious incidents that have been not reported to the regulator, which explained the question of whether an incident is “notifiable” under the act always involves similar case-by-case deliberations.
MacLean agreed that “Comcare cannot be satisfied that all notifiable incidents [in the offshore detention centres] have actually been reported” — and the number of notifications it has received over the years is quite small.
The two-year time limit
WHS expert Max Costello, whose private submissions to the inquiry informed its questioning of Comcare, has been prodding the regulator in a private capacity for several years.
He is particularly concerned that a “pattern” of 15 child sexual assaults alleged to have occurred in the Nauru detention centre between September 14, 2012 and June 30, 2015, and reported to DIBP by Transfield Services, could have given rise to offences under the act.
He is worried Comcare may have missed a two-year statutory time limit on WHS prosecutions, which takes effect from when “the offence first came to Comcare’s attention, or one year after a coronial report, coronial inquiry or inquest ended, or other official inquiry ended”.
But Comcare’s regulatory operations group general manager Justin Napier told the committee the two years had not started.
“In our view, the inspection process has not been enlivened at this juncture, because we have needed to establish the extend of duties as they relate to — and this is the complexity question again — the detainee cohort,” he said in a March hearing.
Costello finds it “disappointing and surprising” that the committee didn’t question this interpretation further. He thinks the clock has started because he sent two letters to the regulator in August 2015, asking it to investigate what he believed were likely WHS offences emerging in the public domain. 18 months later, in February this year, Comcare had still not asked the department for the reports of the alleged child sexual assaults on Nauru it received from Transfield.
The act allows for anyone to ask the regulator to take action, as the near-identical state versions do. It must respond with certain details about whether it investigated and if prosecution will occur — or if not, why not — within three months.
“Comcare did do that, two months and 29 days after my letter, and a few weeks later they invited me in for a discussion,” Costello told The Mandarin.
“We had a chat and Comcare was commencing the investigation and the one thing that they raised of concern was that they said they couldn’t exercise their powers outside the jurisdiction.”
Puzzled by the basis of this interpretation, he said Comcare officials assured him it was based on “high-level advice” in further discussions.
The current complications
Fast-forward to this year’s inquiry and everyone acknowledges the act does apply to the centres, though exactly how still isn’t settled. The department and service providers are PCBUs and their duties apply to the extent they can “influence and control the matter” of health and safety in question.
“The department is the main PCBU running the centre,” Costello argues. “It writes the contracts which specify the duties of the various contractors, it oversees those contracts, and those contracts have what you might call penalty clauses if the contractors don’t comply.”
“There is no question that the Commonwealth, via the department, has the capacity to influence and control health and safety matters in those two workplaces. They’re clearly the predominant duty holder to ensure health and safety of both workers and other persons.”
As to Comcare’s complex view of the situation, which led the committee to call for a review of the act to clarify things, he says: “I would say it amounts to obfuscation. When you go to the plain words of the act, they’re pretty clear.”
“Now, section 12F(3) that gives the WHS Act ‘extended geographical jurisdiction’ is fairly clear, and then when you look at the Criminal Code provision which gives effect to that phrase, what it says in essence is that at overseas Commonwealth workplaces, the Commonwealth act applies if there’s no equivalent act.”
Nauru has no health and safety law at all and PNG has an old one that does not apply to the Manus Island RPC. “That’s why the Commonwealth act steps in to protect workers and other persons at a Commonwealth workplace such as the centres on Manus and Nauru,” Costello contends.
He has one theory that could help explain Comcare’s hesitation over the years. The section of the Criminal Code that gives the Commonwealth WHS Act extended geographical jurisdiction only applies it to Australian citizens and bodies corporate, not government departments.
The WHS lawyer said the Department of Employment pointed out to him that a department could still be liable, if negligence overseas could be traced back to actions or omissions by its staff in Australia.
On the other hand, as the committee reports, Costello proposes the WHS Act could easily be amended with words copied, ironically, out of the Border Force Act:
“This Act extends to acts, omissions, matters and things outside Australia.”