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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.
A duty of care exists
The DIBP has asserted that it provides only a supporting role to the governments of Nauru and Papua New Guinea in relation to RPCs. This does not absolve the DIBP from its responsibilities under the WHS Act or other legislation and case law that provides for extraterritorial application. It is clear that the DIBP has accepted that it has a duty to ensure health and safety in RPCs under the WHS Act.
The WHS Act has clear provisions regarding the duties binding the DIBP, including relevant penalties for failure to comply.
Lawyers want PMs from John Howard to Malcolm Turnbull in dock over asylum detention
by Heath Aston in SMH – 14 Nov 2016
Every Australian prime minister from John Howard onwards should be investigated for crimes against humanity in relation to the indefinite detention of asylum seekers, according to a group of international lawyers.
The group of seven British, American and Australian lawyers, which includes high-profile barrister and refugee advocate Julian Burnside, has petitioned the International Criminal Court to investigate the treatment of asylum seekers by successive governments, beginning with John Howard’s.
A 52-page communique names Mr Howard, Malcolm Turnbull, Tony Abbott, Kevin Rudd and Julia Gillard, claiming they have knowingly breached the Rome Statute of the court.
“Those breaches involve the indefinite detention of asylum seekers who have committed no offence and regardless of their age or health or sex,” the communique states. “The breaches also include forcible removal of asylum seekers to Pacific Island countries where they are detained and seriously mistreated, for the stated purpose of ‘stopping the boats’: that is, deterring people from seeking asylum in Australia.”
The report, published on Tuesday by the Australian National Audit Office, condemned the Department of Immigration and Border Protection for its handling of contracts to run offshore detention, saying the detention regimes on Nauru and Manus held people in unhealthy and dangerous conditions, were wasteful of public money, and damaging to Australia’s reputation.
The auditor found the department failed to get “value for money” in running offshore detention: contracts were signed “in great haste to give effect to government policy decisions and the department did not have a detailed view of what it wanted to purchase”.
A new report shines a light on the growing powers of the Minister. When norms like the presumption of innocence are challenged, we all lose, writes Max Chalmers.
Imagine a neighbour accuses you of a crime. The police investigate and file charges. It’s a minor crime, the neighbour says you stole a lawnmower, but their anger spurs police to push ahead. Before the case is complete the police drop the charges; the lawnmower turns up at the back of the neighbour’s shed.
For an Australian citizen, that would be the end of the matter. For an asylum seeker living in the community as their application is processed, the same encounter could well result in an indefinite period behind bars.
Refugee Council of Australia Report – November 2016
“Family reunion is key.” – Former refugee from South Sudan
Impact of protracted family separation
A common refrain from people from a refugee background who have participated in RCOA’s consultations is that the physical security offered by Australia is offset by ongoing mental anguish of family separation. People commonly refer to their serious concerns for the safety and welfare of family members left behind. A former refugee living in Melbourne, for example, reported that her brother had been kidnapped and killed in Iraq after having twice had a visa application refused by Australia
Allocating at least 5,000 visas under the family stream of the Migration Program for refugee and humanitarian entrants.
Introducing needs-based concessions under the family stream of the Migration Program.
Conducting a consultation with refugee communities, practitioners involved in providing support with family reunion applications and other relevant stakeholders to develop a process for assessing eligibility for the concessions
Significantly reducing existing processing times for family reunion applications, improving procedures for communicating with visa proposers and applicants, restoring funding for professional migration advice services, expanding the nointerest loan scheme and extending eligibility for the scheme, reviewing thedefinition of “family” used to assess and prioritise family reunion applications and removing current restrictions on family reunion for refugees who arrived by boat
Substantially reducing the visa application charges, increasing the size of the Community Support Program and breaking the numerical link between this program and Refugee and Humanitarian Program