Untold Damage - workplace health and safety in immigration
10th Jun 2016
Abuse, mental illness and neglect of basic hygiene cause unnecessary and lasting health problems for detainees in immigration detention. They have even caused death. As Commonwealth workplaces, all people affected by immigration detention facilities are supposed to enjoy the protections found in the Work Health and Safety Act 2011 (Cth) (the WHS Act), including detainees. However, an investigation by the Australian Lawyers Alliance (ALA) reveals that this law is being regularly flouted, with the Department of Immigration and Border Protection (the Department) regularly failing to meet its obligations. The regulator, Comcare, also appears to misunderstand its own obligations to investigate injuries and illnesses. Ultimately, changes to the WHS Act are needed to ensure that immigration detention facilities can become safe workplaces for workers and detainees alike.
Incidents affecting health and safety
Every week it seems there is a new report about serious health and safety risks in immigration detention. They are not presented as such. Stories about injustice, human misery and tragedy get more headlines. The fact remains, however, that these headlines also reveal appalling conditions in Commonwealth workplaces that would not be tolerated anywhere else. Some of the worst abuses take place in offshore detention. While the Department claims that these centres are run by foreign governments, the legislation (s12F(3) of the WHS Act) and departmental action (in reporting some health and safety incidents that occur in offshore detention to Comcare) clearly demonstrate that the WHS Act applies in these facilities as much as anywhere else.
Rape and other sexual crimes have been widely reported. Women who have fled their own countries for fear of rape have been have been attacked in the street on Nauru. They feel unable to report the crimes committed against them for fear of reprisals—the population of Nauru is so small that reporting crimes can easily attract retribution. Some women have become pregnant as a result of these rapes, and then been subjected to unnecessarily cruel and distressing processes in seeking terminations.
Children have also been abused. One child in Nauru suffered terribly following an assault against him in detention, where a worker admitted to having come into contact with the child’s genitals. His whole family was targeted following the incident: they were intimidated and received death threats.
On Manus Island, men have been raped. They were then sent back to live in the same accommodation as their attackers.
People on both islands have died. Hamid Khazaei was suffering from what started off as a skin infection for a week while bureaucrats argued with doctors. His condition deteriorated rapidly. He died from something that should have been treated by antibiotics that are readily available in Australia. On Nauru, people have felt so hopeless, the only way they could communicate their distress was to set themselves alight. One person died this way on Nauru this year, another has been in hospital for over a month.
Mental illness is a serious problem throughout the detention network. Self-harm is disturbingly common. While analysis of records indicates certain ‘spikes’ in self-harm incidents, where one or more incidents are reported by the Department to Comcare each day over a period of days or weeks, many of these incidents also go unreported. Often these spikes occur after a government announcement.
Obligations under the WHS Act
While there is much debate what immigration detention is (an administrative tool, deterrence, torture), there is no debate that it is a Commonwealth workplace. The Department is the ‘person conducting the business or undertaking’ (PCBU), meaning that the WHS Act vests it with a primary duty of care to ensure the health and safety of workers and that the health and safety of others, such as detainees, is not put at risk by its activities: s19.
A number of provisions in the WHS Act flesh out that duty. All health and safety incidents (‘notifiable incidents’ under the WHS Act) must be reported to Comcare, which in turn has powers to investigate, make recommendations and even prosecute.
Safe systems of work are required, including systems for ensuring that information is available and acted on: s27. Officers of the PCBU have particular, individual obligations to ensure that the PCBU’s obligations under the WHS Act are met. If they do not fulfil these obligations, they can be held personally liable for an offence: s27. The WHS Act specifies that a worker (including a contractor) cannot be punished for taking action to seek compliance with the Act, under the discriminatory conduct provisions: s104 and following.
In addition to the Department and Comcare appearing to fail to meet their respective obligations under the WHS Act, our research reveals that the WHS Act is inadequate to ensure health and safety in immigration detention. Comcare has said that sexual assault is reportable as a notifiable incident under the WHS Act only if hospitalisation is required. Psychological health, while specifically included in the definition of health, is not adequately catered for in the types of incidents that must be reported to the regulator. Under the WHS Act, there is no provision for reporting some of the biggest threats to health and safety, such as poor hygiene, which can cause so much illness and may have been the cause of Khazaei’s initial infection.
The Australian Lawyers Alliance has this week released a report investigating how the WHS Act is being implemented in immigration detention, both in Australia and offshore: Untold Damage: workplace health and safety in immigration detention under the Work health and Safety Act 2011 (Cth). This report examines in detail the obligations under the WHS Act and other legislation and the failures to meet those obligations. It makes substantive recommendations for further investigation, legislative reform and enforcement measures.
Anna Talbot has been with the Australian Lawyers Alliance since January 2016. She manages the daily aspects of the Australian Lawyers Alliance’s federal policy and advocacy activities and provides legal and policy advice as needed. Anna has a long history of working in public interest advocacy in both a domestic and international context. Before joining the Australian Lawyers Alliance, Anna worked as a personal injury lawyer, assisting survivors of historical child abuse achieve justice for what they had suffered. She also worked with survivors of abuse in Kenya, taking testimony for a class action against the British Government in the Mau Mau case. While living in London she worked in competition law for a corporate firm and has also worked for the Attorney General’s Department in Australia. Anna has also worked in advocacy on the international stage, providing legal and policy advice and conducting advocacy for Amnesty International in their work at the United Nations in Geneva and New York.
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).