Australia’s ‘rule of law’ system leaves millions unprotected: Part 2

Jan 19, 2021

Part 1 discussed the role of law-makers (parliamentarians) and law-implementers (public servants). Part 2 discusses the role of law-interpreters (judges) and law-enforcers, including a non-regulating regulator, Comcare.  

Law-interpreters – often protective, occasionally not

In a 1992 High Court case, the judges’ interpretation of the Migration Act 1958 (Cth) severely reduced protections available to boat-borne asylum seekers. The case was Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs and Another (1992) 176 CLR 1. (Commonwealth Law Reports; Volume 176, page 1.)

Mr Lim and his co-plaintiff were Cambodians who had arrived by boat in 1989 and 1990. Their asylum claims were rejected so they had sought judicial review of the decisions and asked the High Court to release them pending the review hearing.

But two days before their case was due to start, the law-makers (Paul Keating’s Labor government) drastically amended the Migration Act to tightly control visa-less people who came by boat.

As a result the full High Court had to interpret new key sections, which decreed that all “designated persons” (effectively ‘boat people’) without a visa or entry permit must be detained until they are deported or granted an entry permit. (Thus the two plaintiffs stayed detained.)

By contrast, under the ‘old’ law, only 5% of asylum seekers (478 out of 23,000) were then being held in detention. Yet the majority judges held that detention was “necessary” – or “reasonably capable” of “being seen as necessary” – “to enable an application for an entry permit to be made and considered”.

In her book Making Migration Law, Eve Lester argues that Lim destroyed two protections for ‘boat people’. (Lester was the instructing solicitor in the Lim case.)

First, by saying that designated persons must be detained, Lim-accepted amendments created “decision-less” detention – obliterating the detainees’ right to seek judicial review of an individual decision (by an Immigration Department staffer) to detain them.

Second, despite the then-current 5% detention rate of visa-less people, detention would in future be mandatory for all if they were ‘boat people’.

Unaccountably, “no insight was offered [by the judges] into the meaning of ‘capable of being seen’ (by whom?) as ‘necessary’ … Nor is light shed on how detention was ‘necessary’ to ‘enable’ an application to be made and considered.”

Law-enforcers – protective? Not if the regulator doesn’t regulate

As Part 1 noted, work health and safety law-enforcers issue improvement notices far more often than they prosecute. Federal WHS regulator Comcare hardly does either.

Data for 2017–18 in Safe Work Australia’s “Comparative Performance Monitoring Report, Part 2 – January 2020” show (at p 14) that of 40,691 improvement notices issued by regulators nationwide, NSW issued 9,210 and Victoria 15,170, while “Aus Gov” (Comcare) issued 24. (None was issued to Home Affairs.) Even the geographically tiny ACT jurisdiction issued 205. Of 266 successful prosecutions nationwide, NSW ran 59, Vic 116, the ACT 2, and Aus Gov 0 (p 16).

Comcare’s record as a total non-enforcer regarding detainees in Immigration facilities is indicatively evidenced by the concluding paragraphs – see below – of submission 75 (by Robert Richter QC and me) to a 2019 Senate Committee examining the government’s ‘Medevac repeal’ bill. (To aid narrative ‘flow’, paragraph sequences are altered and paragraphs 5.19 to 5.22 slightly re-written.)

5.12 Comcare’s most shameless non-investigation was its failure to ask the Department to hand over the 15 reports – of child sexual assault at the Nauru Regional Processing Centre – that Comcare knew were in the Department’s (electronic) possession.

5.13 Comcare knew so because Max Costello’s 14 August 2015 “please prosecute” letter to Comcare quoted the transcript of a Senate Select Committee’s proceedings on 20 July 2015. It recorded a departmental assistant secretary Cheryl-Anne Moy telling senators that the Department had received the 15 reports between late 2012 and 30 June 2015.

5.14 Max Costello’s letter put 1 October, 2014 as the date when the offences concerned first came to Comcare’s notice: so the Act’s two-year deadline for laying of charges was 1 October, 2016. Yet during the Senate Committee hearing on 15/3/17 … five and a half months after the 2-year time limit had expired (a limit Comcare acknowledged), the following extraordinary exchange occurred.

Senator McKim: But you have not yet asked for a copy of all incident reports, have you?

Ms MacLean [Comcare’s acting CEO]: No, but we will.

5.15 By not asking, in time, for the 15 vital items of evidence, Comcare permanently deprived the children and their families of even the possibility of justice.

The Hamid Khazaei case

4.2 The August 2014 arrival of Manus asylum seeker Hamid Khazaei, brain dead, at a Brisbane hospital eventually led to a coronial inquest and, on 30 July 2018, the release of the official report of that inquest.

4.3 Queensland State Coroner Mr Terry Ryan said the death was “preventable” and found that the Department’s “overly bureaucratic” airlift approvals process, involving “at least four levels of public servants” in Canberra, was a contributing factor.

4.5 A more fundamental contributing factor was the Department’s failure to stock at the Manus clinic, Meropenem, an antibiotic that “effectively [treats … most tropical infections], including the infection suffered by Mr Khazaei”.

4.6 When those contributory factors are set against the pro-actively preventative duty of care, it appears that [those failures] could amount to, prima facie, two ‘reckless non-compliance with duty’ offences.

5.10 Yet Comcare did not prosecute! On 6 August 2019 Comcare sent Max Costello the following email [edited for conciseness].

Dear Mr Costelllo,

Thank you for the email of 29 July 2019 to Ms Sue Weston [Comcare CEO] querying if charges had been laid … concerning the death of Mr Hamid Khazaei.

I am replying on Ms Weston’s behalf.

After assessing the Coroner’s Report …, it did not appear to Comcare that an offence had been committed against the WHS Act.

Yours sincerely, Justin Napier, General Manager, Regulatory Operations Group

5.19 But what if Comcare had prosecuted the Department and a senior officer in, say, 2015, re the alleged Regional Processing Centre-related offences; so that by, say, July 2016, both were found guilty, with the Department being fined $2 million and the officer jailed for two years?

5.20 If that had happened, the sociopathic ‘not until near-death’ (but still unwritten) airlift policy would have been replaced; six deaths … prevented; … the remorseless mass destruction, offshore, of asylum seekers’ physical and psychological health would have been curtailed, and the offshore cruelty regime could have been ended by, say, 1 October 2016.

5.21 But Comcare didn’t prosecute then and (as per Khazaei) isn’t prosecuting now. (As a result, the mass destruction continues, now mainly ‘onshore’, including at the Immigration Detention Facility on Australia’s Christmas Island and in “alternative places of detention” (APODs) such as city hotels.)

5.22 The systemic, extreme breaches of WHS Act duties by Home Affairs/Australian Border Force are not accidental or random: they are officially approved (or condoned): their criminality is thus knowing and deliberate – that is, organised. Comcare, by its ongoing ‘nothing to see here’ approach, is, in effect, running protection for organised crime.

Concluding observations, potential solutions

Robo-debt unlawfulness was an Alice-in-Wonderland type of phenomenon:

“When I use a word,’ Humpty Dumpty said …, ‘it means just what I choose it to mean …”

The government and Centrelink played Humpty Dumpty with “debt” – a vital word in the Social Security Act.

But the immigration detention-related unlawfulness is, apparently, outright crime. A law-maker (government) and a law-implementer (Home Affairs, via its Australian Border Force unit), have kept breaking one of the government’s own laws, the WHS Act, abetted by a supposed law-enforcer, Comcare.

The common element is the implementation of government policy by unlawful means – that is, ‘a rule of men, not of laws’ situation. So, what is to be done?

In 1970s USA, when the executive (President Nixon) was acting unlawfully, the two traditional bulwarks against executive over-reach – a free press and the legislature (Congress) – shamed Nixon into resigning. In Australia, the government’s Robo-debt unlawfulness has been shamed, but not its criminality-with-impunity persecution treatment of immigration detainees. Such inexcusable silence from both bulwarks must end.

To make Comcare an enforcer, law-makers must: (1) define Comcare in s 5 of the Law Enforcement Integrity Commissioner Act 2006 (Cth) as “a law enforcement agency”; and (2) augment that Act’s Objects provision, which refers only to corrupt conduct by individuals (agency staff members), by wording such as “to ensure that a law enforcement agency enforces the law, and does so without fear or favour, with due diligence, and with optimum effectiveness”.

Law-makers should make gross breaches of model litigant rules a criminal offence.

They must enact a Charter of Human Rights, thus incorporating international human rights instruments into domestic law, and repeal a John Howard impediment to their enforcement – the Attorney-General’s Criminal Code Act power (in s 268.121) to prevent prosecutions for alleged crimes against humanity, war crimes, and genocide.

Law-makers must also give legislative immunity from prosecution to people involved in exposing the alleged commission of grave crimes by or on behalf of government – people such as David McBride, Witness K, Bernard Collaery and Julian Assange. Any government that evades culpability for its own international crimes by making the whistleblowers the criminals, subject to secret trials and/or life imprisonment, is unspeakably evil.

In such a context, this two-part analysis has brought to light only a few areas of rule of law failure within a huge, dark landscape.

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