Comcare has still not laid charges against Australian Border Force.
While Christmas Island’s immigration detention centre was holding Covid-19 evacuees and a Tamil asylum seeker family, Australia’s apartheid-like health care regime was on show: ‘the best’ for Australian citizens and residents, ‘the worst’ for immigration detainees.
It’s February 2020: the Morrison government flies Australians from China’s Covid-19 area to be quarantined at the Christmas Island immigration detention centre. The Department of Home Affairs, via its Australian Border Force arm (ABF), is in charge of all detention centres and, as ABF’s website says, “responsible for … the health and welfare of detainees”. But, as noted below, ABF’s duty under federal workplace law is to ensure detainee health. This duty is not enforced.
Fortunately for the Covid-19 evacuees, the detention centre is declared a “Human Health Response Zone” under the Biosecurity Act 2015 (Cth), so they will get the best of health care. Immigration detainees aren’t so lucky – ‘their’ law provides only on-paper protection.
Section 19 of the Work Health and Safety Act 2011 (WHS Act), imposes on the party in charge of a Commonwealth workplace (including an onshore or offshore detention centre) a “primary duty of care”. That duty requires such workplace operators to pro-actively and preventatively ensure the health (and safety) of both “workers” and any “other persons” – such as detention centre residents – at the workplace. Further, “health” includes psychological health; an operator’s top officers must exercise due diligence to ensure that their operator complies with all its WHS Act duties; and failure to comply with any such duty is a heavily penalised criminal offence.
But the Act’s regulator, Comcare, has never enforced those duties of care in relation to immigration detainees. As Comcare’s Annual Reports reveal, it has never prosecuted the department now called Home Affairs under the Act. And to my knowledge, it hasn’t once issued a section 191 “improvement notice” to compel detainee-related compliance.
Four victims of Comcare’s non-enforcement are the Tamil asylum seeker family (parents, two young girls) from Biloela, Queensland who, prior to the Covid-19 airlift, were the only detainees at Christmas Island.
The Tamil family are virtually forced by ABF to all sleep in one bed; they rarely have access to wi-fi or children’s TV; and guards with body cameras monitor all interactions with them. If the quarantine authority treated the Covid-19 evacuee families in such a manner, Australia would be incurring global opprobrium: after all, the evacuees are only in detention because they just happened to be ‘in the wrong place at the wrong time’.
But so were the over 2,000 boat-borne asylum seekers that Australia exiled to the Nauru or Manus centres in 2012–14. Up to 500 of them (most now classed as refugees) are currently held in mainland detention centres, according to Home Affairs/ABF’s latest monthly statistical summary. Those 2000+ asylum seekers were not – just as Covid-19 evacuees and the Tamil family are not – detained for having committing any crime. The term ‘illegal’ is a misleading slur. They deserved – and deserve – humane, high quality treatment.
So why was there un-prevented mass maltreatment at the Manus and Nauru centres? Why were sick detainees, including children on Nauru, not medically evacuated until they were approaching death? And why are asylum seekers or refugees at a Christmas Island or mainland centre (including an “alternative place of detention” such as a hotel) still, as reported by Crikey, Buzzfeed, and Guardian Australia, subjected to un-prevented [ABF] cruelty, including medical and/or psychiatric and/or dental neglect?
Answer: Comcare complicity – as Robert Richter QC and I explicated in our joint submissions (nos. 75 and 75.1) to the Senate’s 2019 ‘Repair Medical Transfers’ Committee.
Back in May 2019, invoking section 231 of the Act, I sent Comcare a ‘please prosecute’ letter regarding the Tamil family. In June, Comcare began investigating Home Affairs/ABF and its top officers, for the alleged section 19 offence of failing to pro-actively and preventatively ensure their psychological and physical health (the younger girl’s teeth were allowed to rot) at the Melbourne Immigration Transit Accommodation (MITA) facility.
Yet in August 2019, ABF took them from MITA to the (then) empty Christmas Island centre, thereby putting their psychological health at further risk. Thus Home Affairs/ABF, which ironically answers to Peter (‘no-one is above the law’) Dutton, apparently – and contemptuously – re-committed the very offence that it knew was under criminal investigation.
Comcare has still not laid charges.
The Hayne Royal Commission called to account the banks & financial institutions and the regulators, ASIC and APRA. Home Affairs/ABF, their senior officers, and regulator Comcare, must likewise be called to account.
It’s time for all concerned – victims, journalists, lawyers, ex-ABF and ex-Comcare staff, health professionals, current affairs programs, MPs and Senators – to start telling the general public an inconvenient truth. The truth is that the Australian government (via Home Affairs/ABF and their senior officers) has been and is, with impunity, implementing its asylum seeker & refugee policy by allegedly criminal means at detention centres. Once that accountability process starts gaining momentum, it should be turbocharged by a fact-finding Senate inquiry.
Max Costello (retired) is a former WorkSafe Victoria prosecuting solicitor, and former lecturer in Employment Law at Melbourne’s RMIT University. He wrote “Offshore Crimes”, The Monthly online, 22 September 2016.