Time to end the ‘criminality with impunity’ of Australia’s immigration detention regime

By Max Costello

The unfitness for office of Australian Prime Minister Scott Morrison and his coalition government now stands comprehensively exposed. Yet the apparent criminality of Liberal-National cruelty to immigration detainees has somehow remained largely unexposed, unprevented, and unpunished for nearly a decade.

In late August 2014, a formerly fit, healthy, 24 year-old Iranian man, Hamid Khazaei, a detainee in an Australian immigration detention facility (IDF) on PNG’s Manus Island, was belatedly flown here for medical care but arrived, brain dead, at a Brisbane hospital. An infected lesion on his leg had led to sepsis. Life support was turned off on 5 September.

The July 2018 report of Queensland coroner Mr Terry Ryan’s inquest said the death was “preventable”, and identified, among the contributing factors:

(1) Immigration’s failure to stock, at the Manus clinic, Meropenem, an antibiotic that would “safely and effectively treat” most common tropical infections “including Mr Khazaei’s”; and

(2) the “overly bureaucratic” approvals process for medical evacuations, involving at least four levels of public servants in Canberra, that had delayed Mr Khazaei’s airlift.

So, why wasn’t the Immigration department subsequently brought to book? And why, when 21 of 45 detainees in a Melbourne hotel IDF contracted COVID-19 in October 2021 (ABC 7.30, 28/10/21), after being denied vaccines for six months until August (Australian Border Force statement, 29/11/21), has the successor department, Home Affairs, not yet been held to account?

Q: Is there a law against such dangerous neglect? A: Yes, but it’s rarely enforced. Allow me to explain.

What applicable law has been, and is being, apparently broken?

The maltreatment of detainees in the variously named IDFs was and is apparently criminal, because it exposes detainees to preventable risks to their health and safety, thereby contravening criminal offence provisions of the Work Health and Safety Act 2011 (Cth) (WHS Act): it commenced on 1 January 2012.

The WHS Act applies to all Commonwealth workplaces, including IDFs, wherever located: s12F(3) gives the Act “extended geographical jurisdiction” over Commonwealth workplaces located in countries that, like PNG and Nauru, lack a WHS law. Thus the WHS Act applied to the Manus Island regional processing centre (RPC) until it closed on 31/10/17, and could re-apply to the long empty Nauru RPC if re-occupied.

The Act calls a Commonwealth workplace operator a “person conducting a business or undertaking” (a ‘PCBU’). At IDFs, the PCBU is the Commonwealth of Australia – effectively, the relevant government department, namely Home Affairs, and in particular its Australian Border Force (ABF) unit, whose website says, “We are responsible for the management … of [IDFs] including the health and welfare of detainees”. To assist at IDFs, the Commonwealth contracts Serco Australia Pty Ltd (Serco) to provide “garrison services” (e.g., security guards), and International Health and Medical Services Pty Ltd (IHMS).

But IHMS doctors can’t directly refer detainees to specialist external health facilities: they may only recommend such care to a non-medical body, ABF, which decides whether such care will be arranged. Often it’s refused or delayed, as detailed by Health Care Denied: Medevac and the long wait for essential medical treatment in Australian immigration detention (Public Interest Advocacy Centre, 3/12/21).

The WHS Act’s s19 imposes on PCBUs like Immigration/Home Affairs/ABF a “primary duty of care” to “ensure, so far as is reasonably practicable, that the health [including psychological health] and safety of workers [19(1)] and other persons [e.g., IDF detainees, 19(2)] is not put at risk …”.

Section 18 defines “so far as is reasonably practicable” in process terms: PCBUs must identify all potential dangers to health and safety; risk assess each one (how likely to eventuate, how harmful if it does) to tease out all the significant risks; then find available and suitable ways to “eliminate or minimise” each one. Section 17 prioritises elimination: minimisation is sufficient only if elimination is not realistically achievable. In short, the s19(1) & (2) duty is both exacting and pro-actively preventative.

Also, the onerous s27 requires a PCBU’s “officers” (senior decision-makers) to “exercise due diligence to ensure that [their PCBU] complies with [every Act] duty or obligation”.

Non-compliance with s19, s27, and any other “health and safety duty”, is a serious criminal offence.

What the WHS Act’s regulator, Comcare, should do, but has rarely done

Comcare’s key function is “to monitor and enforce compliance with this Act” – s152(b). Since the Act commenced on 1/1/12, Comcare, in relation to IDF detainees, has used two enforcement modes: orders to comply (“improvement notices”) and prosecutions. Comcare’s Annual Reports since 2011–12 record one prosecution: on 3/3/21, two charges each were laid against IHMS and (effectively) Home Affairs, alleging breaches of the s19 duty to ensure the mental health of a detainee at Sydney’s Villawood IDF (prior to his 2019 suicide). The next mention is on 21/12/21. Annual Reports of the Immigration/Home Affairs department show that it incurred nine WHS Act improvement notices from 2011–12 to 2020–21.

Two examples of Comcare non-enforcement in relation to IDF detainees

In February 2019, another refugee advocate and I urged Comcare to prosecute re the Khazaei matter. We suggested that the coroner’s two contributing factors implied grave breaches of the s19(2) duty. On 9/8/19, Comcare emailed me to ‘explain’ why no charges had been laid: “After assessing the Coroner’s Report …, it did not appear to Comcare that an offence had been committed against the WHS Act”. Thus the Khazaei family was denied justice.

Home Affairs/ABF is yet to incur Comcare enforcement action over its neglect of a Melbourne IDF’s 45 detainees. Does Comcare truly believe that denying access to vaccines for 6 months, and other ‘COVID risk’ behaviours (such as making openable windows un-openable), are not serious breaches of the Act?

So, what is to be done? Can the Law Enforcement Integrity Commissioner discipline Comcare?

No. The Law Enforcement Integrity Commissioner Act 2006 (Cth) (LEIC Act) only gives the Commissioner power over law enforcement bodies that are designated as a “law enforcement agency” by that Act or its regulations. Comcare is not. It must be, ASAP. But even then, since the LEIC Act doesn’t refer to agency integrity, just natural person corruption, the Commissioner could only tackle an individual Comcare staffer who “engages in corrupt conduct”, not agency-wide corruption. Thus Comcare would stay ‘captured’ by Home Affairs/ABF re IDF detainees. Clearly, the Act must be amended to empower the Commissioner to deal incisively with blatantly non-enforcing agencies.

Could the media have relentlessly exposed, and Parliament ended, the ‘criminality with impunity’?

Yes. But inexcusably they haven’t, despite being apprised by, e.g., Anna Talbot’s 149-page report, Untold Damage – workplace health and safety in immigration (Australian Lawyers Alliance, 10/6/16). To my knowledge, no Senate Estimates Committee has asked Secretary Pezzullo or Commissioner Outram to instance due diligence steps they have taken to ensure Home Affairs/ABF compliance with the WHS Act at IDFs, or asked Comcare’s CEO why Comcare has so rarely enforced the Act in relation to detainees. Many (most?) Commonwealth politicians have called for a commission to tackle federal level corruption, but not one of them has publicly called out, much less campaigned against, almost a decade of apparent federal level criminality (with near total impunity) at IDFs.

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Max Costello, now retired, is a former prosecuting solicitor with WorkSafe Victoria, and a lecturer in Employment Law at Melbourne’s RMIT University. He wrote “Offshore Crimes” (The Monthly online, 22/9/16) and several subsequent refugee-related pieces in Pearls and Irritations. He also co-authored with Robert Richter QC submission 75 to the 2019 Senate Committee considering the government bill aimed at repealing the Medevac amendments to the Migration Act.

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