DIBP leaves regulator in dark on appalling Nauru detainee conditions
28th Aug 2015
Numerous incidents over the past two years, including allegations of sexual misconduct, harassment and assaults of people held on Nauru, do not appear to have been reported to Comcare by the Department of Immigration and Border Protection (‘DIBP’), the Australian Lawyers Alliance (ALA) said today.
This is despite the serious findings of the Moss Review and the current Senate inquiry assessing the conditions at Nauru.
The ALA applied under the Freedom of Information Act 1982 and obtained an overview of all incidents reported to Comcare by DIBP over the past two years. Seventy-nine incidents were reported regarding Nauru - 50 directly affecting asylum seekers.
However, a comparison of the reported 79 incidents with whistle-blower reports to the Senate inquiry into Nauru reveals significant gaps in reporting by the DIBP. This includes allegations of assault, sexual harassment, sexual assault and diseases such as tuberculosis and typhoid – the DIBP appears not to have told Comcare about these extremely serious workplace health matters.
Under the Commonwealth Work, Health and Safety Act 2011, the DIBP must report notifiable incidents to Comcare. A notifiable incident includes the death of a person, a serious injury or illness of a person, or a dangerous incident. Each failure to notify constitutes an offence. Failure to report notifiable incidents to Comcare is an offence under the Work, Health and Safety Act 2011 (Cth) (‘WHS Act’).
ALA spokesperson and barrister Greg Barns described the DIBP’s apparent failure to report as “absolutely deplorable”.
“The Department of Immigration and Border Protection appears to have created an absolutely deplorable culture of neglect and indifference when it comes to asylum seekers being detained in Nauru,” Mr Barns said.
“Evidence to the senate inquiry indicates that the department knew of many of these incidents within hours, yet appears to have failed to notify Comcare, the national regulator of work, health and safety.”
“The Moss Review and the current senate committee inquiry has revealed the abhorrent conditions in the Nauru regional processing centre,” Mr Barns said.
“Information revealed to the Australian Lawyers Alliance under the Freedom of Information Act indicates that the DIBP is not notifying the regulator of the full extent of serious issues affecting asylum seekers and allegations of criminal behaviour in a Commonwealth workplace.”
“Why haven’t allegations of sexual assault, including of children, been reported to the regulator? Why haven’t cases of tuberculosis and typhoid been reported to the regulator?” Mr Barns asked.
Analysis of evidence provided by contractor Wilson Security to questions on notice indicates that potentially only three incidents known to the company were reported to Comcare by the DIBP.
“Evidence to the Senate inquiry has indicated that the Department is regularly updated as to the progress within the Nauru regional processing centre. If that is the case, then why are atrocious incidents not being reported to Comcare?” Mr Barns said.
“The Moss Review exposed gross misconduct in the Nauru RPC. However, it appears that at no time over the past two years did the Department ever report to Comcare any serious allegations regarding sexual misconduct in the Nauru RPC.”
“The one sexual incident that was reported to Comcare involved the alleged sexual assault of a worker in October 2014. However, this was characterised as ‘no serious injury or illness or dangerous incident occurred’. Further detail is required regarding this incident,” Mr Barns said.
Allegations of sexual incidents that were never reported by DIBP to Comcare include:
- Well-known November 2013 incident involving a young boy and a local cleaner, reported in the Moss Review
- 30 December 2013 of a suspected sexual incident involving a 9 year old boy.
- January 2014 – sexual assault allegations regarding an 8-year-old girl
- February 2014 – 8 year old boy sexually assaulted by two men, witnessed by Commonwealth employee
- April 2014 – Several older children having sex from behind with younger children
- May 2015 - rape of a 22 year old woman while on day release, found at 9pm naked and beaten on the road
“These findings appear to indicate that there has been a permissive culture of assault, misconduct and selective accountability, created in a prison environment over which the Commonwealth has management and control,” Mr Barns said.
“If the types of incidents reported in Nauru occurred in a prison on Australian soil, it is likely an action for breach of a non-delegable duty of care could be brought successfully.”
“It is clear that the Department has known about incidents. It is clear that the Department has failed to adequately report incidents to the regulator,” Mr Barns said.
“Failure to report the types of incidents that are alleged to have occurred on Nauru raises serious questions about how complicit is the Department in the cover up of the true conditions in Nauru?”
“The attitude of the Department appears to be one where allegations or examples of serious abuse towards detainees are dismissed out of hand,” Mr Barns said.
“It’s a combination of indifference, trivialisation and failure to take seriously what appears to be the abuse of people detained by Australian authorities.”
Mr Barns said that it appeared that systemic issues of risk were not adequately identified, explored or resolved by the DIBP or by Comcare, particularly in relation to sexual harassment and sexual assault (including of children), physical assaults, mental health and public health (including disease control).
Mr Barns said it appeared that the DIBP had taken control of any responsibility to notify Comcare from its contractors such as Transfield, however many of the serious issues raised by the Moss Review and by the Senate inquiry appear to never have been reported to Comcare. (Examples can be found in the ‘Summary of Significant Issues’ at the end of this release).
Mr Barns said that while there appeared to be over-reporting on the part of DIBP regarding very slight injuries that occur to workers, serious injuries or incidents that occur around the same date affecting asylum seekers are not reported to Comcare.
“For example, the department’s records show that in March 2014 it reported to Comcare that a contractor had slipped down a hill and fractured their ankle,” Mr Barns said.
“Yet the same records show that in the same month of this incident a Commonwealth-contracted employee struck a 10-year-old boy with special needs across the face, and Commonwealth-contracted employee struck a 4-year-old girl in the back of the head with such force she was lifted off her feet.”
“Neither of these incidents seem to have been reported to Comcare. The department needs to explain why it has seemingly ignored these extremely serious incidents which would constitute assault,” Mr Barns said.
Mr Barns said that it was clear from evidence to the Senate Committee that there were a number of cases of disease and serious illness that were not reported to Comcare, some involving children, including impetigo, lice, typhoid, and tuberculosis. Mr Barns said it was reasonably foreseeable that the risk of these diseases spreading was high. Further, serious illness constitutes a notifiable incident under the WHS Act.
“A nurse reported that she treated a baby with typhoid, potentially in December 2014. This was never reported to Comcare by DIBP,” Mr Barns said.
“Submission No. 80 to the Senate inquiry noted that an unaccompanied minor was diagnosed with tuberculosis after months of suffering and misdiagnosis by IHMS. Many unaccompanied minors were later diagnosed with tuberculosis outside in the Nauru community. Save the Children Australia staff were also diagnosed with the disease after it was found out that the unaccompanied minor had it.”
Mr Barns said that evidence before the Senate committee also appeared to indicate that there may have been breaches of the duty of care to provide reasonable medical treatment, for example, alleged delays in the provision of kidney treatment for a man in 2014, and the allegation that a young girl was flown back to Nauru from Australia following surgery against medical advice.
“Evidence before the Senate committee has brought to light the true state of affairs in Australia’s detention centre in Nauru. It appears that the Department has known the true situation and not only tolerated it, but failed to report it,” Mr Barns said.
“The Department faces a number of questions which it urgently needs to answer.”
Summary of significant issues
Some of the most significant issues identified by the ALA include:
- No allegations of sexual assaults of any kind against detainees in Nauru have been reported to Comcare. (For example, specific incidents that have not been reported are the well-publicised November 2013 assault of an adolescent boy by a cleaner, and the May 2015 assault of a young woman, among many others)
- The allegation of a sexual assault of a worker was reported (#242, FY14/15) however was characterised as ‘not notifiable – an incident occurred but no serious injury or illness or dangerous incident occurred’
- No allegations of sexual harassment in Nauru have been reported to Comcare
- An investigation alleged to have been undertaken by Wilson Security into marijuana use in December 2014/January 2015 was not reported to Comcare
- Following the announcement of the DIBP on 25 September 2014 that people on Nauru would not be eligible for temporary visas or resettlement in Australia, significant incidents occurred in the Nauru RPC, as reported to the Senate inquiry. 7 incidents were reported to Comcare over the next 5 days, however all of these were characterised as ‘not notifiable’ as they ‘did not result from the conduct of the business or undertaking’. This was despite the obvious connection with the announcement on 25 September 2014. No investigation was undertaken by Comcare into the spike in incidents.
- While there have been many reports that indicate the appalling psychological health of people detained at Nauru RPC, it appears that no investigation has been undertaken into why there have been so many self-harm incidents. Similarly, many of these incidents have been characterised as not notifiable and characterised as ‘not resulting from the conduct of the business or undertaking’.
- It also appears that chronic issues in relation to public health have not been reported to Comcare, for example, tuberculosis, typhoid, impetigo and potentially perhaps dengue and chickungunya disease if affecting asylum seekers.