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A rapidly evolving area of law with ‘far-reaching consequences'
The federal regulator of Commonwealth workplaces, Comcare, has been the watchdog of immigration detention facilities in Australia and regional processing centres (‘RPCs’) in Nauru and Manus Island for many years.
The Work, Health and Safety Act 2011 (Cth) (‘WHS Act’) places a statutory duty of care upon the Department of Immigration and Border Protection (‘DIBP’) as the legal person conducting the business or undertaking ('PCBU'), to ensure the health and safety of workers and ‘other persons’ such as detainees. A duty of care also exists at common law.
This duty extends to identifying, eliminating or minimising risks to health and safety, and reporting ‘notifiable incidents’ (as defined in the WHS Act) to Comcare. Comcare in turn is obliged to investigate incidents and make recommendations to increase health and safety. It also has enforcement powers.
The Australian Lawyers Alliance (‘ALA’) applied under the Freedom of Information Act 1982 (Cth) to unearth details of what the DIBP has been reporting to Comcare from FY2013 - 2015.
This Report details both what was, and was not, reported to Comcare, and how these reports were investigated.
What we found
- Inconsistencies exist in the reporting of incidents by the DIBP and the investigation of incidents by Comcare.
- The phrase ‘arising out of the conduct of the business or undertaking’, the key phrase that underpins Comcare’s investigations, is unclear. This means that some injuries and incidents are not adequately investigated and opportunities to improve workplace health and safety are missed.
- Evidence suggests that prosecutions of the DIBP and/or relevant contractors may be appropriate for some breaches of legislation that have occurred in immigration detention.
- The DIBP and Comcare appear to seriously misunderstand the nature of some injuries and illnesses, meaning threats to workplace health and safety are not responded to. This is particularly the case in relation to sexual misconduct and mental health.
- Inadequate data collection means that health and safety for vulnerable groups does not receive adequate attention.
- A lack of basic necessities poses a risk to health and safety but there is no mechanism for Comcare to investigate this.
- There are obstacles to reporting threats to workplace health and safety, in relation to workers employed by contractors and responses to complaints by the DIBP. These obstacles have been exacerbated by the Border Force Act 2015 (Cth).
- Evidence provided by whistle-blowers and the DIBP itself to the parliamentary inquiries into Nauru and Manus Island indicates gross inconsistencies in the number of incidents reported, suggesting under-reporting of incidents to Comcare.
What needs to happen
Independent body to investigate
It would be appropriate for an independent body with enforceable powers to subpoena and examine witnesses and documents, to investigate the failures of the DIBP, contractors and Comcare to adequately discharge their obligations under the WHS Act in the immigration detention network, including RPCs on Nauru and Manus Island.
This investigation should be via an independent judicial inquiry or a Royal Commission.
Royal Commission into Institutional Responses to Child Sexual Abuse to inquire
The ALA believes that it would be appropriate for the Royal Commission into Institutional Responses to Child Sexual Abuse to investigate allegations of child sexual assault in all places of immigration detention, considering that responses of government institutions to allegations of child sexual abuse is likely to have taken place in Canberra.
The Commonwealth should review the WHS Act
Amendments to the WHS Act should be considered by the federal Parliament, via a committee process. In particular, ss 19, 35, 36, 37 and 38 should be amended to ensure that the following matters are appropriately recognised as relevant to health and safety:
- all deaths, regardless of the circumstances in which the death occurred;
- serious sexual assault, sexual abuse and serious sexual harassment;
- all assaults of children;
- bullying giving rise to a fear for safety;
- psychological injury;
- self-harm incidents;
- series of serious injuries or illnesses that could be related;
- any failure to identify, mitigate and eliminate risks to health and safety posed by contractors, including failure to report incidents to the DIBP or Comcare; and
- the individual’s age, sex and any other characteristics giving rise to vulnerability, with reporting requiring that these factors be identified.
The Commonwealth should ratify OPCAT and engage with UN human rights mechanisms
The Australian government should ratify the Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (OPCAT). This would provide for more effective monitoring of detention environments in line with human rights standards.
Comcare should review its interpretation of the WHS Act
Comcare should review its interpretation of the WHS Act. A broad interpretation of the types of injuries, illnesses and incidents that it should investigate should be adopted. A broad interpretation of ‘the conduct of the business or undertaking’ should also be used. This is required to meet the objects of the WHS Act to enhance the health and safety of workplaces.
Comcare should consider prosecution of the DIBP and/or relevant contractors
Comcare should consider the appropriateness of prosecuting the DIBP and/or relevant contractors for relevant possible breaches of the WHS Act outlined in this Report. Offences that may have been committed include those directly relating to workplace health and safety, as well as concealing health and safety incidents.
Comcare should also consider what other further enforcement action should be undertaken in relation to any failure of the DIBP and/or relevant contractors to implement previous recommendations. This could include referring breaches of other legislation by the DIBP or other parties to the Australian Federal Police.
The Commonwealth should remove of secrecy provisions of the Australian Border Force Act
The provisions of the Australian Border Force Act 2015 (Cth) that prevent disclosure of health and safety concerns by any person who works in an immigration detention facility should be repealed in full. These provisions undermine the ability of the DIBP and Comcare to ensure that immigration detention is a safe place for workers and detainees.
The Australian public should consider the implications of any failure to implement these recommendations
In the event that the federal government does not implement the above recommendations, it would be appropriate for the Australian public to consider the implications regarding the government’s commitment to health and safety, and transparency in Commonwealth workplaces.