Refugee Action Collective (Vic) Media Release

Refugee advocates are concerned that certain criminal charges laid in 2021 against the Department of Home Affairs have not yet proceeded to trial. The charges relate to the unprevented suicide of a detainee at Sydney’s Villawood immigration detention centre on 4 March 2019.

Ian Rintoul of Sydney’s Refugee Action Coalition and Refugee Action Collective (Victoria) spokesperson, Max Costello, are asking, “Will this case proceed? Or will it be permanently ‘stayed’ by the presiding magistrate?”

Costello, a retired health and safety prosecutor, explains the legal background. “All immigration detention facilities, including Villawood, are Commonwealth workplaces, because immigration is a federal government matter. Accordingly, they come under the Commonwealth Work Health and Safety Act 2011.

“Inspectors of the Act’s regulator, Comcare, investigated the suicide circumstances, and prepared a brief of evidence: it underpins the charges that were laid against Home Affairs, and another defendant, in Sydney’s Downing Centre Local Court on 3 March 2021.”

Comcare’s 10 March 2021 media release elaborates: “The Department of Home Affairs and its healthcare provider International Health and Medical Services (IHMS) have been charged with breaching Commonwealth work health and safety laws over the death of a man in immigration detention.

“… the Commonwealth Director of Public Prosecutions has filed two charges each against Home Affairs and IHMS alleging they failed in their duties under the federal Work Health and Safety Act 2011 (WHS Act).

“The charges relate to an incident on 4 March 2019 where a 26-year-old Iraqi national took his own life at Sydney’s Villawood Immigration Detention Centre.

“It is alleged that Home Affairs and IHMS failed to provide and maintain a safe system of work at the facility as part of their health and safety duties that extend to detainees.

“It is also alleged that Home Affairs and IHMS failed to provide necessary training, information and supervision to mental health staff in relation to their care for the detainee.

“Each charge … [carries] a maximum penalty of $1.5 million.”

What’s happened since then? Court records reveal that, in 2022, Home Affairs and IHMS applied to have their charges permanently ‘stayed’ – deferred indefinitely, never to be heard. In response, the court adjourned the matters.

Eventually, in early May this year, magistrate Shields heard both defendants argue in full their case for a permanent stay. On 3 May, his Honour indicated that, on 25 August, he would make a yes or no decision on their application.

“The possibility that these charges might never be heard is deeply concerning”, says Ian Rintoul. “Since the 2019 suicide, there have been at least four other suicides and numerous suicide attempts in Villawood, including one in January 2023. Nothing has changed.

“The root cause of these tragedies is the excruciating cruelty of extended, sometimes indefinite, detention. Labor should scrap this regime that locks people up just for being a non-citizen.

“A prosecution would see that regime publicly scrutinized in open court. A guilty verdict and substantial fines would hold Home Affairs and IHMS to account, and deter future non-compliance with the WHS Act’s duties of care.”

Max Costello added, “The charges laid in this matter are the first and only charges brought by Comcare against the Department (or IHMS). That’s despite the fact that I, and fellow RAC (Vic) member Margaret Sinclair (Dip WHS), have (separately) written to Comcare a total of 76 times since 2014, providing evidence of apparent WHS Act criminal offences and asking Comcare to take enforcement action. But every time, Comcare says its inspectors have found no evidence of a breach of the Act.”

Margaret Sinclair comments, “Granting permanent stays could involve three cruel implications. The deceased man’s family would be robbed of justice; detainees could well believe that the law will never protect them; and Home Affairs/IHMS might conclude that unlawful, potentially fatal neglect of detainee health and safety can be engaged in with impunity.”

“A final, serious concern”, says Ian Rintoul, “is that Home Affairs has been maintaining its application for a permanent stay even under Labor. The charges allege offending in 2019, when the Morrison Liberal-National government was in office and Peter Dutton was the Home Affairs minister.

“But Labor’s Clare O’Neil became the minister in May 2022. Surely Labor would want to see Home Affairs and IHMS held to account. The only constant is that Michael Pezzullo was, and is, the departmental Secretary.

“We call on minister O’Neil to forthwith instruct Secretary Pezzullo to ASAP write to the court withdrawing the department’s stay application. Justice can then take its course.”