Recent inquiries have brought to light the lack of accountability from government institutions engaging in cruelty and human rights abuses, writes Max Costello.
TWO PRESIDING officers – Federal Court Justice Bernard Murphy in the case of Mostafa “Moz” Azimitabar, and Robodebt Royal Commissioner Catherine Holmes – recently said damning things about the ethics of major Australian institutions and their senior office holders. Similar words were said in 2018 by Banking Royal Commissioner Kenneth Hayne and in 2017 by Justice Peter McClellan, chair of the Institutional Responses to Child Sexual Abuse Royal Commission.
So, how to prevent, punish (and thus deter) such embedded cruelty in the behaviour of both government and non-government institutions? In “pub test” terms, it seems amazing that no institutions have been prosecuted and no senior officers gaoled.
On Thursday 6 July, Justice Murphy found against a civil claim, lodged by Kurdish refugee “Moz”, that his detention in two hotel “APODs” (alternative places of detention) was unlawful. Yes, it was lawful, Murphy decided. But, he added in post-decision remarks, that did not imply his approval of Moz’s treatment by the Government.
Murphy said:
“I can only wonder of the lack of thought, indeed the lack of care and humanity, in detaining a person with psychiatric and psychological problems in the hotels [for] 14 months.”
Last Friday, the report of Robodebt Royal Commissioner Holmes was released. It condemned the behaviour of senior public servants and a succession of Coalition government ministers — behaviour that ‘was all the more reprehensible in view of the power imbalance between [them] and the cohort of people upon whom it would reasonably be expected to have the most impact, many of whom were vulnerable and dependent on the department, and its minister, for their livelihood’.
In 2018, during live broadcasts of Banking Royal Commission proceedings, Kenneth Hayne said little but conveyed much. If a bank or finance entity CEO was unsure about how to prevent the unlawful charging of customers for services not rendered, Hayne might drily enquire, “Have you considered obeying the law?” And, if senior APRA, ASIC or AUSTRAC officers struggled to define what regulatory actions (if any) might curb such behaviour, Hayne might ask, “What about enforcing the law?”
Speaking at the final sitting of the Child Abuse Royal Commission in December 2017, Commissioner Justice McClellan said:
“There must be changes in the culture, structure and governance practices of many institutions.”
More than 4,000 individual institutions [including churches, schools, sporting clubs and youth detention facilities] have been reported to the Royal Commission as places where abuse occurred, with tens of thousands of victims.
Bill Shorten: “...hundreds of prosecutions are now underway”.
Further back, there was the 1991 report of the Royal Commission into Aboriginal Deaths in Custody — most of whose recommendations remain largely unimplemented to this day. One could go on.
But just taking the comments of Murphy, Holmes, Hayne and McClellan, at least two initial questions arise. What mechanisms, if any, could have (1) prevented the cruelty; and/or (2) held to account the parties responsible for it?
Follow-ups ensue: (3) if such mechanisms were available, why didn’t they work? or, (4) if they were not – and are still not – available, what corrective measures are needed?
I turn now to discuss (1)–(4) vis-à-vis the commission reports, then Moz’s case, in chronological order.
My commissions-related analysis avoids repeating the detailed canvassing of those questions by commissioners. I say more about (1)–(4) in relation to Moz’s case because, while Murphy’s 306-paragraph judgment does mention question (1)’s unprevented cruelty, its sole focus is on deciding whether detention in hotel APODs was lawful.
A. Questions (1)–(4) in relation to Institutional Responses to Child Sexual Abuse, 2013–2017
Bill Shorten’s note that prosecutions were underway points to one indirect prevention mechanism — namely, reporting alleged child sex abuse to police, thereby prompting, sometimes, an investigation with a view to a Crimes Act prosecution. Although that option is reactive, not proactively preventive, it should (if alleged offenders are convicted and imprisoned) specifically deter their reoffending and, if widely publicised, could generally deter other potential offenders.
But child victims tended not to tell their parents and parents who were told did not necessarily go to the police. Many institutions, if told, prioritised protecting their reputation above caring for the victim. And even if police laid charges, they could rarely prove allegations beyond reasonable doubt when the situation was one person’s word against another’s.
So, the Crimes Act mechanism failed to protect many thousands of children and saw relatively few perpetrators – and no institutions, CEOs or archbishops – being held criminally liable.
If, however, the venue were a workplace that children lived at (such as a youth detention centre or a boarding school) or regularly came to (an ordinary school), another set of laws – most jurisdictions’ work health and safety acts plus the OHS acts of Victoria and WA in 2013-17 – offered the potential of a directly preventive regime. They all required workplace operators, including “institutions”, to proactively prevent workplace-related risks to the health (including psychological health) and safety of both “workers” and “other persons” (of any age).
Breaches are heavily penalised criminal offences. But to my recollection as an OHS Alert subscriber, no OHS/WHS criminal charges alleging failure to prevent workplace risks of child sexual abuse were brought in 2013–17. The reluctance of OHS/WHS regulators to be involved in such “intimate” cases could partly explain that gap. As to one regulator’s “cohort reluctance”, see part D (Moz’s case) below.
B. Questions (1)–(4) in relation to financial cruelty by banks and finance houses 2017–2019
Commissioner Hayne found that senior personnel of regulated entities and regulators had regarded non-compliance as a norm. ASIC was calling financial services entities “clients”.
Not so, wrote Hayne:
‘ASIC does not perform its functions as a service to those entities. And it is well-established that “an unconditional preference for negotiated compliance renders an agency susceptible to capture” by those whom it is bound to regulate.’
Hayne’s report prompted a flurry of enforcement. The headlines sounded impressive.
As reported by Crikey in 2019:
‘NAB potentially faces up to $8 billion in fines, with the Australian Securities and Investments Commission alleging the bank engaged in unconscionable conduct in its long-running fees-for-no-service scandal. ASIC believes NAB breached the law 12,347 times, with penalties for each contravention ranging from $250,000 to $2.1 million.’
But they were all civil matters: ASIC et al had to sue the banks and finance houses — and, as with most civil cases, they “settled”. A “$5 billion fines case” could be settled for, say, $5 million. No criminal record, no gaol. The cosy collusion had died down, but the largely toothless law lived on.
C. Questions (1)–(4) in relation to financial cruelty via Robodebt 2017–2022
In Venn diagram terms, the reports of the Banking and Robodebt royal commissions closely overlap in one area — the law-breaking institutions’ corrupted internal culture, especially at or near the top. They don’t overlap much in regard to the highest responsibility level: ministers and government.
Could mass cruelty have been prevented? Yes — if government, ministers and senior members of the Australian Public Service had followed a venerable assumption (government only implements policy by lawful means), and a venerable convention (the APS provides government with frank and fearless advice). But, as revealed by former Prime Minister Scott Morrison’s pattern of having himself secretly appointed to multiple ministries (and, in the U.S., Donald Trump’s modus operandi in general), assumptions and conventions don’t work, even in “reputable democracies” if – in pub test terms – those in power don’t give a rat’s.
As to holding those responsible to account and the adequacy of relevant regulatory regimes, we’re basically in a watch this space situation.
As Paul Karp of Guardian Australia noted (7/7/23):
‘[Commissioner Holmes’] report... includes 57 recommendations. The sealed chapter [referring unnamed individuals for civil and criminal prosecutions] has been sent to various commonwealth agencies including the Australian Public Service Commissioner, the National Anti-Corruption Commissioner, the Law Society of the A.C.T. and the Australian Federal Police.’
But let me add a wildcard possibility involving the Work Health and Safety Act 2011 (Cth). As learned experts Richard Johnstone and Michael Tooma explain in their “textbook”, Work Health and Safety Regulation in Australia, pages 70–71, the duty to protect “other persons” can apply outside the workplace concerned.
Quoting historical OHS case law – Boland v Safe is Safe Pty Ltd & Munro (2017) SAIRC 17 and Thiess Pty Ltd v Industrial Court (NSW) (2019) NSWCA 252 – they say OHS/WHS law ‘imposes a duty to protect the public at large’.
On that basis, I suggest that Robodebt decision-makers had a duty not to “recklessly” expose welfare recipients to the risk of suicide by sending them misleading and very anxiety-inducing letters of demand.
The relevant WHS Act offence provision reads as follows:
31: Reckless conduct — Category 1
(1) A person commits a Category 1 offence if:
(a) the person has a health and safety duty; and
(b) the person, without reasonable excuse, engages in conduct that exposes an individual to whom that duty is owed to a risk of death or serious injury or illness; and
(c) the person is reckless as to the risk to an individual of death or serious injury or illness.
Penalty:
(a) [re] an offence committed by an individual … —$300 000 or 5 years imprisonment or both.
(b) [re] an offence committed by an … officer [senior decision-maker] … —$600 000 or 5 years imprisonment or both.
(c) [re] an offence committed by a body corporate [or government department]—$3 000 000.
Section 231(a) of the Act requires a prosecution to be initiated ‘within two years after the alleged offence first comes to the notice of the regulator [Comcare]’ — so any prosecutions would now be out of time. But Section 231(b) says a prosecution can be brought ‘within one year’ of a coroner’s inquest or report if WHS offending can be inferred from it.
D. Questions (1)–(4) in relation to cruelty in immigration detention 2013–2021 (Moz’s case)
The above date span reflects the fact that, during those years, Moz was in some type of immigration detention facility – on Christmas Island (an Australian external territory), on Manus Island, PNG, at the Mantra Hotel APOD in Preston, then at the Park Hotel APOD in Carlton – until his release in January 2021.
All were Commonwealth workplaces covered by the WHS Act (Cth) – the Manus facility under Section 12F(3)’s ‘extended geographical jurisdiction’. While in PNG, Moz was found to be a refugee in 2017 and diagnosed with PTSD in August 2019. Under the Migration Act’s short-lived “Medevac” amendments, if, in two treating doctors’ opinion, a detainee was extremely unwell and couldn’t get proper care offshore, he or she must be transferred to Australia for ‘medical or psychiatric assessment or treatment’.
Accordingly, Moz was transferred here in November 2019.
Submission 52 (co-authored by three medical practitioners) to a Senate Committee proved just how ill-intending Medevac transferees were: 97% had serious physical ailments (averaging 4.6 each); 91% had a psychiatric illness; and 88% had both.
Yet Home Affairs Secretary Michael Pezzullo told the Senate Committee on 26 August 2019 that, although all treating doctor pairs (“doctors so-called” according to Pezzullo) had written “inpatient care required”, Home Affairs’ chief medical officer had, in effect, over-ridden that assessment in nearly all cases. Pezzullo said only four of the 111 detainees Medevaced to that date had gone to the hospital, and 70 of the 111 “were not even outpatients”.
Pezzullo stated that International Health and Medical Services (IHMS) – a Commonwealth contractor – “managed” APOD detainee health. But he didn’t explain that, while IHMS doctors could recommend referring detainees for external specialist care, Australian Border Force (ABF) would decide if and when it was to be availed of. Presumably, few of the 192 Medevaced detainees received such care. If so, a Commonwealth law was sabotaged by a Commonwealth department. To date, that looks like “criminality with impunity”.
From the Murphy judgment’s long list of cruelties inflicted on Moz during his 14+ months of hotel APOD confinement, we can infer that Home Affairs, instead of preventing risks to Moz’s safety and physical and psychological health, apparently committed offences against the Act by creating and exacerbating such risks. Home Affairs operates detention facilities via the acts and omissions of its ABF unit and of Commonwealth contractor personnel controlled by ABF — IHMS doctors and nurses, and Serco Australia guards.
Regulator Comcare should have issued compliance-compelling “improvement notices” to Home Affairs in relation to hotel APODs, or, if its inspectors found enough probative evidence, laid criminal charges. To my knowledge, it did neither.
Unlike ASIC/APRA/AUSTRAC, Comcare has a law with teeth. But like them, it has apparently been reluctant to enforce its law, at least regarding immigration detainees. Via a 14 August 2015 letter, I requested Comcare to investigate 15 reports to Immigration of child sexual assault at the Nauru facility.
At a 15 March 2017 Senate hearing, Senator Nick McKim asked Comcare acting CEO Lynette MacLean about the reports. She said Comcare had (still) not asked Immigration to hand them over. Question (4) asks: what corrective measures are needed? Maybe the APS Commissioner’s powers need strengthening in this area. Or maybe a new and independent Commissioner for Compliance and Accountability is needed, to proactively oversee the performance of all Commonwealth law enforcement bodies, and with the power to sack CEOs of bodies that systemically and blatantly fail to enforce “their” law.
In conclusion, let me point to one more law enforcement option, which only Australia’s Attorney-General can activate. It’s the Criminal Code Act 1995 (Cth), which sets out various “crimes against humanity”, including Section 268.13 (‘Torture’) and Section 268.23 (‘Inhumane Act’). Any senior office holder, including a minister, responsible for systemic Moz-type maltreatment, could be held to account via charges laid under either provision.
Over to you, Mark Dreyfus KC, MP.
Max Costello LLM is a retired WorkSafe Victoria prosecutions solicitor and lecturer in Employment Law at Melbourne’s RMIT University. He has co-written submissions to Senate committees concerning asylum seeker health and safety and is the author of 'Offshore Crimes'.
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