MAX COSTELLO. It was the best of days; it was the worst of days

Aug 6, 2019

July 30, 2019 was the best of days for Australia’s immigration detention centre detainees because, at last, a mainstream media outlet revealed that their cruel maltreatment involved apparent criminal offences under Australian law. It was the worst of days, because it revealed that the law’s regulator had not charged Home Affairs over an emblematic asylum seeker death by the 29 July deadline.

On Tuesday 30 July 2019, the first ever revelation via an Australian mainstream media outlet of ‘immigration detention centre criminality’ was made, on ABC radio in Melbourne, by eminent criminal law barrister, Robert Richter QC.

He thereby made 30 July 2019 the best of days for the thousands of boat-borne asylum seekers and refugees who have been – and the hundreds who still are – held in an Australian ‘detention facility’ (however precisely named).

Long-time host of ABC 774’s morning program, ex-lawyer Jon Faine, invited the QC to outline – and justify – his opinion that the Commonwealth government had been breaching one of its own laws at detention facilities.

Hitherto, the mainstream media had only covered the civil law perspective – breaches of Australia’s (unenforceable) international human rights obligations.

Richter explained, firstly, that since all detention facilities are Commonwealth workplaces, the Commonwealth Work Health and Safety Act 2011 (WHS Act), applies to them, across Australia and its Territories.

He said it also applies in Nauru, at the regional processing centre (RPC), though not in PNG, because “arrangements have changed”.

[To explain: section 12F(3) gives the Act “extended geographical jurisdiction” in countries that lack such a law; and the
Manus RPC closed on 31 October 2017.]

Secondly, section 19 imposes on workplace operators – in this context, Peter Dutton’s Department of Home Affairs – a “primary duty of care” for the health and safety of not only “workers” but also any “other persons” at the workplace – such as detainees. [Sections 18 & 17 make that duty pro-actively preventative.]

Thirdly, Richter QC referred to “egregious” and “outrageous” failures to comply with that duty, including very recent instances involving little girls detained at the [Melbourne Transit Accommodation (MITA)] facility in Broadmeadows.

For example, a two-year-old Australian-born Tamil girl recently underwent a hospital operation [under general anaesthetic] to remove some baby teeth that had become dangerously rotted as a result of prolonged Home Affairs neglect.

A few weeks before that, a MITA toddler with flu-like symptoms was rushed to hospital. That was organised, not by Home Affairs (which did nothing), but by the mother’s lawyer, who had rung – from Sydney (!) – to arrange the transport.

Asked by Faine, Who should be doing something about all this? Richter said, “Comcare”, the WHS Act’s regulator. “Comcare should be prosecuting”.

But it hasn’t been. Richter called the absence of prosecutions “extraordinary”.

Having, in effect, made 30 July 2019 the best of ‘Australian mainstream media’ days, Richter then made it also, in effect, the worst of all ‘law enforcement’ days.

He did so by mentioning that Comcare had failed to lay charges in the Khazaei case by the statutory deadline (the previous day).

As Richter explained, Manus asylum seeker Hamid Khazaei had arrived brain dead at a Brisbane hospital in August 2014.

[A cut on his leg hadbecome infected and was not responding to treatment: Mr Khazaei was starting to develop sepsis (blood poisoning). His airlift was delayed by the Department (whose Minister back then was Scott Morrison).]

The QC’s interview time having been very limited, I was invited, as a former WorkSafe prosecutor, to answer more ‘Comcare questions’, and elaborate.

Comcare’s Khazaei Inspector Report EVE00229456-0001 found “no evidence … that the [airlift] delay … was a contributing factor to the final outcome …”, and said “there were no apparent breaches of the legislation” (see Senate submission 47, pp 35–36).

But Queensland coroner Terry Ryan’s inquest report, dated 30 July 2018,

found that the Department’s “overly bureaucratic” airlift approvals process, involving “at least four levels of public servants” in Canberra, was a contributing factor (page 99).

Mr Ryan’s Recommendation 1 was that Home Affairs “develop and implement” a simple airlift approvals process that is driven by treating doctors and has, “as an overriding consideration, the health and well-being” of RPC detainees (p 118).

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” (pp 3, 78).

Act charges must usually be laid within 2 years, but can be laid “within 1 year” of a later coroner’s report if it (in effect) points to WHS Act offences (section 232).

So, the deadline was 29 July 2019. But no charges were laid! Non-government MPs and Senators, after quoting coroner’s report extracts, might ask, “Why not?”

Also, given the coroner’s July 2018 Recommendation 1, here’s another question: “Why – according to Home Affairs’ own FoI disclosure logs 12 April 2019 – was the offshore airlifts policy, as at 18 December 2018, still worded as follows?”

Requests for temporary medical transfers to Australia … will only be considered … where the [detainee] faces a life-threatening medical emergency that would otherwise result in their death or permanent, significant disability.

During Faine’s program, I commended Comcare for recently agreeing (in emails to me) to investigate many alleged WHS Act breaches, in relation to not only the MITA Tamil girl and her family, but also the whole onshore detention network.

But I also said 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 RPC – that Comcare knew were in the Department’s (electronic) possession.

Comcare knew so because my August 2015 “please prosecute” letter to Comcare quoted the transcript of the Senate Committee hearing concerned: it recorded a Department official telling Senators that the Department had received those 15 reports between late 2012 and 30 June 2015 (Senate submission 47, pp 34–37).

At another Committee public hearing years later, on 15 March 2017, five months after the 2-year time limit on laying charges had expired – a limit that Comcare acknowledged – Senator McKim asked acting CEO, Ms Lynette MacLean, if Comcare had obtained those reports. Amazingly, she said, “No, but we will …”.

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

On 31 March 2017, the 15/3/17 Committee received a Question on Notice answer stating that Comcare, during its Manus and Nauru inspections to date, had “not observed any breach of the WHS Act by [the Department]”.

One such inspection concerned the 3-day riot at the Manus RPC in February 2014: 69 people were injured and asylum seeker Reza Barati was murdered. Comcare’s Inspector Report EVE00224256-0001 found, astonishingly, that the Department “appeared … to provide a safe workplace …”.

Ministers can’t be prosecuted under the WHS Act – section 247(2).

But had Comcare prosecuted the Department and a senior officer in, say, 2015, over alleged RPC-related offences; so that by, say, July 2016, b0th were found guilty, with the Department being fined $2 m and the officer jailed for 2 years, the (disgraced) offshore cruelty regime could’ve ended by, say, 1 October 2016.

If that had happened, six deaths would’ve been prevented, and the remorseless mass destruction of physical and psychological health would’ve been curtailed.

But Comcare didn’t prosecute then, and (Khazaei case) isn’t prosecuting now.

As to onshore matters, all WHS inspectorates bar Comcare’s issue improvement notices way more often than they lay criminal charges. Improvement notices tell workplace operators that they’re not complying with duty X, explain how, then require compliance by reasonable date Y, thereby nipping WHS risks in the bud.

Safe Work Australia’s Comparative Performance Monitoring Report, Part 2, 20th Edition – December 2018, at p 14, reported that, in 2016–17, NSW and Vic regulators issued, respectively, 7,513 and 15,912 such notices: Comcare issued 8.

As with the banks, a Royal Commission on ‘criminality with impunity’ is needed.

Max Costello, now retired, is a former WorkSafe Victoria prosecuting solicitor, and a former law lecturer at Melbourne’s RMIT University.

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