Labor’s new detainee child-abuse Bill is no solution

12th Oct 2015

A new Private Members Bill mandating the reporting of child abuse in all offshore and onshore detention facilities is not an effective remedy, and would not go far enough to monitor or prevent abuse, the Australian Lawyers Alliance (ALA) said today.

Today, Shadow Immigration Minister, Richard Marles MP, introduced a private members’ bill. The Migration Amendment (Mandatory Reporting) Bill 2015 (Cth) will seek to amend the Migration Act to make it unequivocal that if an immigration or border protection worker reasonably believes that a minor has suffered or is suffering a reportable assault in detention, the worker must alert the Australian Border Force (ABF) Commissioner within 24 hours.

However ALA spokesperson and barrister Greg Barns said that the new Bill would not be an effective remedy as the Department of Immigration and Border Protection (DIBP) already knew of abuse and yet had failed to act.

“The Open Letter to the Australian People said that the DIBP knew of abuse for at least 17 months, long before the Moss Review was ever commissioned,” Mr Barns said.

“Submissions to the Senate inquiry into conditions on Nauru made clear that the DIBP was made aware of vulnerable minors in their care.”

“The Australian Border Force describes itself as ‘the new frontline operational entity within the Department of Immigration and Border Protection’. It is inevitable that reporting to the ABF Commissioner is not going to lead to the same form of accountability and transparency as reporting to an independent body,” Mr Barns said.  

“In practice, we anticipate that the proposed legislation will make little to no difference to children and to other people being abused in detention. Such a measure is not adequately independent or transparent,” Mr Barns said.

“An issue as serious as abuse within detention centres deserves an effective remedy. This Bill is not an effective solution.”

Mr Barns said the new legislation proposed to let the ABF Commissioner know about child abuse happening under the Commissioner’s watch.

“While section 10 of the Australian Border Force Act says that the ABF Commissioner has power to do all things necessary or convenient to be done for or in connection with the performance of his or her duties, in reality, the Commissioner cannot be expected to be expert in this issue,” Mr Barns said.

“The Commissioner would not have the requisite expertise to be able to take appropriate action in dealing with, preventing or remedying child abuse, sexual harassment, trauma, and violence occurring within detention.

“Further, it is questionable to what extent the ABF Commissioner would have an appropriately qualified team to investigate such issues, or whether this would serve to be a replica of Comcare’s current functions,” Mr Barns said.  

“Rather than reinventing the wheel, and carving a new function within the Australian Border Force, it makes more sense to equip and empower the wheel that is currently functioning – which is Comcare.”

Mr Barns said a better option would be to definitively ensure that incidents or allegations of sexual abuse were required to be reported by DIBP to Comcare and potentially also the Australian Human Rights Commission.

“If you want to make a difference that will have a real impact, it would be more appropriate that such incidents are reported to Comcare, the national regulator of Commonwealth workplaces,” Mr Barns said.

“The Work, Health and Safety Act is already held to apply to offshore detention centres in Nauru and Manus Island. Further, the Act already requires that notifiable incidents are reported to Comcare. Currently, sexual abuse does not appear to constitute a ‘notifiable incident’ and is not required to be reported unless a person requires immediate treatment as an in-patient in a hospital.”

“It would be relatively uncomplicated to insert a provision into that Act which states that a ‘notifiable incident’ definitively includes an incident or allegation of sexual abuse, regardless of whether the person required treatment as an in-patient,” Mr Barns said.

“This small amendment would ensure that any incident or allegation of sexual abuse, whether affecting a child, a worker or a young woman, would be required to be reported to Comcare.”

“The Bill also raises issues of transparency and accountability as the initial problem of reports of sexual abuse not being acted upon is in the DIBP itself,” Mr Barns said.

Mr Barns said the proposed legislation would make little to no difference to any victim of sexual abuse being held in detention by Australian authorities.

“This is a pseudo-accountability measure and not an effective remedy,” Mr Barns said.

“While this Bill targets mandatory reporting of child abuse, there is a need for greater transparency and accountability regarding about the sexual abuse of any person being held in an immigration detention centre.”

“The widespread allegation of sexual harassment and sexual abuse of women on Nauru is abhorrent and this bill fails to address the issue of the inability of the DIBP and its contractors’ inability to ensure the safety of women, workers and children within immigration detention centres, especially on Nauru,” Mr Barns said.

“Given the seriousness of the issue of abuse, solutions to remedy the lack of transparency and accountability must be real.”

Tags: Asylum seekers and refugees Comcare