Nauru and the Moss Review
19th May 2015
The Moss Review was released in March 2015, detailing allegations of sexual harassment and abuse of children, young people and women detained in the regional processing centre in Nauru.
Subsequently, a Senate committee was established to inquire into the responsibilities of the Commonwealth Government in connection with the management and operation of the Regional Processing Centre in Nauru. As at date of writing, it will report by 15 June. The ALA provided a submission to the inquiry: The Commonwealth has a duty of care in offshore detention centres. Below, we provide a summary of our submission.
Our submission was comprised of the following:
- Under-reporting and the Moss Review
- Department inaction and awareness of allegations
- Duties of the Commonwealth
- Responsibility of the Commonwealth for staff – civil and criminal action.
Under-reporting and the Moss Review
We noted that ‘it is highly probable that further allegations of abuse may still remain hidden and uninvestigated’. We noted that people have lost confidence that anything would be done about complaints, and we questioned whether adequate trust had been established in the two trips to Nauru conducted by the Moss Review.
We also raised concerns about potential conflicts of interest, given that the Review found that there were reports that allegations of abuse may have been ‘fabricated or exaggerated’. We questioned whether subcontractors may have been implicated and subsequently made such reports to mitigate their own responsibility. For example, we noted that The Saturday Paper had reported allegations that expatriate security guards were having relationships with under-age girls.
Department inaction and awareness of allegations
It appears that the Department of Immigration and Border Protection (‘the Department’) was aware of incidents prior to the instigation of, and publication of, the Moss Review.
On 7 April 2015, a group of 24 current and former employees from the Nauru detention centre, released an Open Letter to the Australian People.
The letter emphasised:
‘We would like to be absolutely clear. The Government of Australia and the Department of Immigration and Border Protection have tolerated the physical and sexual assault of children, and the sexual harassment and assault of vulnerable women in the centre for more than 17 months.’
ALA spokesperson Greg Barns wrote about the Open Letter in ABC The Drum, noting that ‘the letter appears to suggest that the Commonwealth, which has a non-delegable duty of care to asylum seekers in detention onshore and offshore, has knowingly breached that duty’.
The letter also detailed the Department’s inaction in response to allegations:
‘In November 2013, a boy was sexually assaulted by a detention centre employee. The incident was substantiated and the allegations were also found to be credible in the Moss Review. Former Immigration Minister Scott Morrison was notified of this assault. Despite this knowledge, the [sic] chose to keep this child in the detention centre where he was assaulted and remained at risk of further abuse and retaliation. Indeed, this child was subjected to further incidents of abuse while he was in detention.'
We submitted that this strongly suggests that the Department, and the then-Minister for Immigration, were directly aware of assaults and failed to act.
We also raised serious allegations reported in The Saturday Paper that workers on Nauru had been asked to change their incident reports: ‘the department… told us not to include certain incriminating things in our reports. They asked us to change our reports… They simply wouldn’t accept them if they contained information they didn’t want in there.’
Duties of the Commonwealth
We submitted that the Commonwealth retains duties at both common law and under workplace, health and safety legislation that are non-delegable in nature.
The two MOUs signed between Australia and Nauru regarding the centre indicate the level of control exercised by the Commonwealth regarding the regional processing centre in Nauru.
The level of control of the Commonwealth also appears to have been recognised by the Moss Review, in terms of its recommendations, including that:
‘The Department needs to provide effective coordination and adopt a lead role in ensuring that contract service providers work effectively together. This role needs to be played not only at the Centre in Nauru, but also at a head office level… The Department needs to develop its function beyond mere contract management.’
We also noted that Australia’s own Immigration Detention Standards state that:
‘Ultimate responsibility for the detainees remains with DIMA at all times.’
Duties of the Commonwealth at common law
We submitted that ‘we believe that the responsibility of the Australian government of asylum seekers currently detained at Nauru may constitute a non-delegable duty of care at common law.’
While the question of a non-delegable duty of care has not yet been resolved at a High Court level, there have been a number of cases that have considered non-delegable duty of care (including AS v Minister for Immigration and Border Protection & Anor  VSC 593; Anastasios Kondis v State Transport Authority (1984) CLR 672; Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520; Northern Sandblasting v Harris (1997) 188 CLR 313; the UK case of Woodland v Essex County Council  UKSC 66).
It is also a well-established common law duty that prison authorities must exercise reasonable care for the safety of prisoners during their detention in custody (L v Commonwealth (1976) 10 ALR 269; New South Wales v Bujdoso  HCA 76; Price v State of NSW  NSWCA 341).
In AS v Minister for Immigration and Border Protection & Anor  VSC 593, the defendants accepted that the second defendant, the Commonwealth of Australia, owed a non-delegable duty of care to provide reasonable health care to persons who were held in detention on Christmas Island pursuant to the Migration Act.
Duty of the Commonwealth under the Work, Health and Safety Act 2011
We submitted that the Commonwealth may have a non-transferable duty under the Work, Health and Safety Act 2011 (Cth) (‘WHS Act’). The Department has acknowledged in writing that federal workplace laws apply in the regional processing centre on Manus. A Comcare inspector report of Manus Island noted that:
‘DIBP’s position is that the WHS Act applies in full in the context of [the Manus Island Regional Processing Centre] and that MIOPC satisfies the definition of ‘workplace’ for the purposes of the WHS Act.’
Section 10 of the WHS Act binds the Commonwealth who is liable for an offence against the Act and liable for a contravention of a WHS civil penalty provision. Under section 14, a duty cannot be transferred to another person. Further, s242 provides that:
‘A term of any agreement or contract that purports to exclude, limit or modify the operation of this Act or any duty owed under this Act or to transfer to another person any duty owed under this Act is void.’
‘A person conducting a business or undertaking must ensure, so far as is reasonably practicable, that the health and safety of other persons is not put at risk from work carried out as part of the conduct of the business or undertaking.’
We submitted that ‘other persons’ may constitute asylum seekers.
We believe that there is a greater role for Comcare to investigate the safety of workers and other persons in relation to the Nauru regional processing centre, encompassing assessing the risk relating to both physical and psychological injury.
We further submitted that there may be a role for Comcare to prosecute officers of the Commonwealth for breaches of the WHS Act.
Under the WHS Act, the Department must notify Comcare of relevant incidents as per sections 35, 36 and 37 of the Act.
In 2013 – 14, 83 per cent (374 out of 449) of incidents the department notified to Comcare involved detainees and transferees in immigration detention facilities and offshore processing centres, and did not directly involve workers.
A document released under freedom of information laws noted that between 1 October 2013 and 15 October 2014, the Department had reported to Comcare only two ‘critical incidents’. These were two deaths of detainees. No reports of sexual abuse were reported to Comcare, despite the fact that one incident of sexual abuse against a child was substantiated and reported to the Minister.
We note again that:
‘In November 2013, a boy was sexually assaulted by a detention centre employee. The incident was substantiated and the allegations were also found to be credible in the Moss Review. Former Immigration Minister Scott Morrison was notified of this assault.’
However, this incident does not appear to have been reported to Comcare, despite the fact that sexual assault constitutes a ‘critical incident’ reportable to Comcare.
Why was this incident not reported to Comcare?
While 374 out of 449 incidents reported to Comcare involved detainees and transferees, we question whether there are further incidents that have not been reported to Comcare. If so, the Commonwealth may be held liable under s38 of the WHS Act.
Responsibility of the Commonwealth for staff – civil and criminal
We submitted that there is the potential that people employed at the regional processing centre, and Department officials, could face criminal or civil action for their involvement in Nauru, and thus that the Commonwealth is opening up staff to civil and criminal action. If the allegation raised in The Saturday Paper that the Department asked people to doctor incident reports was found to be substantiated, these individuals and the Department could face civil and criminal penalties.
The extent of allegations revealed within the Moss Review are shocking and abhorrent.
We believe that the Moss Review, and the Open Letter to the Australian People, may be utilised in litigation to come.
Emily Mitchell was Legal and Policy Officer at the Australian Lawyers Alliance until January 2016.
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).