A NAURU asylum seeker burns himself to death. More sagas of past offshore cruelty and child sexual abuse and of recent rapes of women emerge.
So who was – and is – legally responsible for this shocking state of asylum seeker health and safety at Australia’s regional processing centres (“RPCs”) on Manus Island and Nauru?
The Abbott/Turnbull government, via Immigration spokespeople, Ministers Morrison and then Dutton, had repeatedly claimed that the governments of Papua New Guinea and Nauru are responsible for Regional Processing Centre health and safety.
That claim, as we shall see, was a legal fiction. But for nearly three years, such a "cloak of respectability" appeared to exist.
Until half way through the 2016 federal election campaign.
In June 2016, as millions of Australian voters were watching Prime Minister Turnbull heading the Coalition’s election campaign parade – marching shamelessly to the tune of Tony Abbott’s lonely hearts club band – he was suddenly exposed, on this issue, as “the Emperor with no clothes”. At that same instant, his suit-and-tie Immigration Minister became a “potato with no jacket”.
Like all illusionists, Abbott, Turnbull, Morrison and Dutton knew that one day, the audience – the people of Australia – would see through their deception. And so the four artful deceivers were just desperately hoping and praying “Don’t let that day come until after the election on 2 July”.
But it had already arrived. And they should have seen it coming.
First there was the production, to a 2014 Senate Committee (about a Manus death), of the Immigration Department’s booklet, ‘Manus Island — a living and working guide’, issued to all Australians working at the Manus RPC.
It refers on page 23 to the Work Health and Safety Act 2011 (Cth) (“the WHS Act”) – a law to ensure everyone’s health and safety at each Commonwealth workplace – then explains that:
‘Because the WHS Act applies extraterritorially, as workers, you will be required to meet your obligations whilst deployed.’Each worker, it says, has an obligation
[under section 28 of the Act, to] ‘take reasonable care that his or her acts or omissions do not adversely affect the health and safety of other persons.’Those ‘other persons’ are, of course, the asylum seekers on Manus Island.
But the mainstream media did not highlight those WHS Act revelations, and so the illusion was maintained.
(It goes without saying that the Act requires workplace operators to also ensure the health and safety of ‘workers’, not just ‘other persons’.)
Next, there was the set of written answers the Department gave on 30 June 2015 to Questions on Notice from a Senate Committee of inquiry into Nauru abuses. The answers paraphrased below are at pages 4–6 of Item 22.
Yes, the answers stated, the Commonwealth/the Department had a duty under section 19 of the WHS Act (a ‘primary duty of care’) to ensure, so far as is reasonably practicable, that the health and safety of ‘other persons’ is not put at risk by work carried out at each of its facilities.
It had that duty because it is the workplace operator — or, to use the Act’s terminology, ‘a person conducting a business or undertaking’ (a ‘PCBU’).
Yes, the answers continued, the WHS Act has ‘extended geographical jurisdiction’ and its duties therefore applied at the offshore RPC on Nauru.
And yes, it was ‘not permissible’ to transfer an Act duty to another person (another government, for instance) or contract it out (to service providers such as Transfield/Broadspecrtrum). In other words, the Commonwealth/ the Department itself had – and has – that section 19 duty of care.
But again, the mainstream media did not highlight those Act revelations.
Lastly, on 6 June 2016, the Australian Lawyers Alliance released its 149-page exposé, Untold Damage.
Drawing on documents obtained via Freedom of Information, it catalogued and analysed the hundreds of ‘notifiable incident’ reports — about a death, serious illness or serious injury at any Immigration workplace, whether onshore or offshore. (It also alleged that many incidents were not reported.)
Those reports had been sent by the Department – in its capacity as the PCBU of those workplaces – to the Act’s regulator, Comcare, during the 2013-14 and 2014-15 financial years.
The governments of Nauru and PNG didn’t notify Comcare; the Department did — because it had (and has) a legal obligation to do so, under section 38 of the Act (an Australian law), whereas the two foreign governments do not.
Some notifications had prompted Comcare inspections — and thus inspection reports, which could be very revealing.
At page 3, Untold Damage tellingly highlighted one such report:
‘The [Department’s] position is that the [Act] applies in full in the context of Manus Island Regional Processing Centre and that the Manus Island RPC satisfies the definition of ‘workplace’ for the purposes of the WHS Act.’
- Comcare Inspector Report into the death of Reza Barati, 2014.
Australian Government, Comcare, Inspector Report, Work Health and Safety Act 2011 (Cth), Relevant date: 18 February 2014, EVE00224256-0001, at 2.
This time, at last, the mainstream media (Fairfax’s Bianca Hall and Noel Towell) gave the WHS Act revelations some coverage.
Thus the Department and Comcare were now on the public record – the hard print publicly reported record – confirming that, under the WHS Act, the Commonwealth/the Department, not the government of PNG or Nauru, is responsible for the health and safety of Australia’s offshore asylum seekers.
And so it was that on 6 June 2016, the Turnbull government’s illusory “cloak of respectability” simply vanished — disappeared, once and for all.
Only two months previously, “Emperor” Turnbull had been lecturing China about “the rule of law”, implicitly proclaiming his commitment to that lofty ideal.
But as election day loomed, there he was, leading the campaign parade, exposed for all the world to see.
Max Costello is a former WorkSafe Victoria prosecuting solicitor and former sessional lecturer in Employment Law at Melbourne’s RMIT University. He co-authored submissions on WHS Act issues to the Moss review and the Senate Select Committee on Nauru abuses.
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