Workplace health and safety in immigration detention under the Work, Health and Safety Act 2011 (Cth)
Copyright © Australian Lawyers Alliance 2016.
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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.
Read the full report here