ALA demands Comcare prosecute over Nauru
18th Aug 2016
With the lid lifted on what the BBC refers to as "Australia's Guantanamo Bay", past abuses and workplace safety incidents on Nauru need to be prosecuted by Comcare, writes Anna Talbot and Greg Barns on behalf of the Australian Lawyers Alliance.
The Nauru Files, released by The Guardian on Wednesday this week, reveal that cruelty and trauma are the order of the day in Australia’s immigration centre on that tiny Pacific island.
Fortunately, brave and conscientious individuals are recording the shocking extent of physical and mental abuse that the Australian Government, its client state Nauru, and private sector companies are inflicting on vulnerable men, women and children, who have committed no offence yet are locked away for years on end.
No doubt similar abuses have occurred on Manus Island, which the Papua New Guinea Supreme Court has ordered to close.
Reports by Amnesty International, Human Rights Watch, the Australian Human Rights Commission, the Australian Lawyers Alliance, Senate Inquiries and Departmental inquiries have lifted the lid on the systemic abuse that is Australia’s offshore detention system. Whistleblowers have revealed what they have seen and been targeted as a result. Many have lost their jobs for exposing abuse.
No one even feigns shock any more when the stories are revealed.
The Government still tries to hide its complicity. Yesterday, the former Immigration Minister Scott Morrison dismissed the testaments of teachers, health workers and others, whose reports make up The Guardian files, as mere allegations.
Today, his successor, Peter Dutton told us that he "won’t tolerate any sexual abuse whatsoever". Yet in the same breath, he reiterated baseless accusations that asylum seekers have fabricated allegations of abuse. He repeated the tired and absurd allegations that asylum seekers and refugees have self-harmed in an attempt to manipulate Australian authorities to let them come here. He called the global outrage that has ensued "hype" and reminded us that the centre is on Nauru, suggesting that it is Nauru’s problem to solve.
Prime Minister Turnbull has said that the documents would be assessed now that they were public (although, even when they were private the government had access to them), and again emphasised that this is Nauru’s problem. Both Mr Turnbull and Mr Dutton know that the arrangement with Nauru is one in which Australia runs all the contracting arrangements and, in fact, the Department of Immigration reports to Comcare, sporadically, on workplace incidents on Nauru.
The ALP is no better when it comes to evading responsibility, with its Federal leader Bill Shorten failing to accept direct responsibility for his Party’s part in creating the conditions for abuse to flourish.
This bipartisan political cowardice approach allows abuse to continue.
There is a history of intimidation by government against those who speak out about the cruelty of Nauru and Manus. In late 2014, similar allegations of child abuse, sexual assault and threats of rape on Nauru were aired by the Fairfax media.
At the same time, a spate of self-harm incidents was occurring. Days after these allegations were aired, the then Immigration Minister Scott Morrison accused Save the Children workers of encouraging asylum seekers to self-harm. There was no evidence provided, but the workers were deported from Nauru and investigated.
In early 2015, a submission by Save the Children to the Senate Inquiry into Nauru inspired a referral to the Australian Federal Police (AFP). At least five other referrals to the AFP regarding immigration detention facilities were made around this time, according to Fairfax. Doctor Peter Young, former detention centre psychiatrist, had his telephone records accessed by the AFP for 'comments attributed to him being highly critical of [the immigration department] and IHMS in their handling of asylum seeker medical care’, according to The Guardian.
Others have lost their job.
Psychologist Paul Stevenson for example, was fired following his public statement:
‘In my entire career of 43 years, I have never seen more atrocity than I have seen in the incarcerated situations of Manus Island and Nauru'.
Responding to revelations of abuse, especially child sex abuse, by investigating the whistleblower, is perverse. We have seen the damage that this approach, taken by the Catholic Church and other institutions, causes. Institutional abuse has been allowed to thrive because of a culture of secrecy, as the Royal Commission into institutional responses to child sexual abuse has revealed. The Royal Commission must have investigated thousands of allegations of abuse. Time and again, survivors tell of thwarted efforts to report the crimes being committed against them. The same abusers’ names come up over and over.
Decades of efforts to hide the facts has meant that many more children were abused, their lives often destroyed. The same secrecy and government inaction allowed abuse at Don Dale Juvenile Detention Centre to continue to fester, until a Four Corners exposé revealed the full horror of the treatment of vulnerable children.
Secrecy still seems to be in fashion, however, in responding to revelations of ongoing abuse in immigration detention. Following some of the above revelations, the Government and the ALP together passed the Australian Border Force Act 2015. This Act provides for a penalty of up to two years in prison for any worker who reveals information that they come across while working in immigration detention.
Whistleblowers who, in the past, may have been investigated by the AFP or fired, now face imprisonment. It is likely that whoever leaked the Nauru Files is liable for prosecution. The abusers and the Department that is facilitating the abuse, however, are unlikely to be punished.
This is no way to prevent abuse. It will not stop until official interest is piqued — to borrow the infamous comment of Indigenous Affairs Minister Nigel Scullion about the Don Dale detention centre in the NT.
One piece of Commonwealth legislation could be utilised to ensure abusers and those who sanction abuse on Nauru and Manus Island are brought to justice. Commonwealth workplace health and safety legislation applies in all Commonwealth workplaces, including immigration detention facilities in Nauru and Manus Island.
The workplace regulator, Comcare, has access to these facilities. It has conducted investigations in Nauru and Manus Island previously. Under the Work Health and Safety Act 2011 (Cth) (WHS Act), incidents involving serious injuries or illnesses or dangerous incidents must be reported by the workplace operator to Comcare. Comcare can then conduct investigations and make recommendations to the workplace operator to ensure the workplace is safe. In serious situations, Comcare can prosecute the workplace operator or individuals working there for offences under the WHS Act. Under the Act, the health and safety of anyone in the workplace – Australian workers, locally employed staff, asylum seekers and refugees – must not be put at risk.
The Department of Immigration and Border Protection is the workplace operator in the immigration detention facilities on Nauru and Manus Island. As noted above, it has acknowledged this in the many incident reports it has reported to Comcare, including over 1,000 incidents involving asylum seekers and refugees between 2013 and 2015.
Comcare’s black letter conservative interpretation of the WHS Act is unduly narrow, meaning many of the threats to health and safety that exist in immigration detention facilities fall outside of its protection. There is a strong case for reform of the WHS Act to ensure it more accurately reflects the risks that exist in these Commonwealth workplaces. There is an even stronger case for Comcare to attend both facilities immediately to conduct an investigation of the clearly unsafe conditions that persist, and prosecute all breaches they identify.
The Commonwealth cannot hide behind the veil of international borders when it comes to workplace safety: the WHS Act applies extraterritorially, as acknowledged by the Department in reporting incidents to it so regularly.
When the need for secrecy is questioned, we are told that detaining refugees and asylum seekers in offshore detention facilities is essential to 'stop the boats'. Surely, it is more important to stop the abuse. Targeting whistleblowers and calling on the AFP every time abuse is aired will only let it fester. The Royal Commission and Don Dale provide clear lessons there. The Australian Border Force Act will only facilitate more abuse, more lives will be destroyed.
Past abuses and workplace safety incidents need to be investigated and prosecuted by Comcare. If Mr Dutton is serious about having no tolerance for abuse, however, his only choice is to close the camps.
Anna Talbot is the Legal and Policy Adviser at the Australian Lawyers Alliance.
Greg Barns is a barrister, spokesperson for the Prison Action and Reform Group Inc and the Australian Lawyers Alliance.
The views and opinions expressed in these articles are the authors' and do not necessarily represent the views and opinions of the Australian Lawyers Alliance (ALA).