Nauru Files? It's in the Work Health and Safety Act, Mr Turnbull

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Since the Work Health and Safety Act applies to all operators, both government and non-government, the Department of Immigration and Border Protection is a serial offender, writes Max Costello.

WHETHER Prime Minister Malcolm Turnbull was looking for (some) answers – by setting up a Royal Commission into Northern Territory youth correctional facilities – or not really looking by not doing so in relation to alleged abuses of asylum seekers on Nauru, the essential answer is actually staring him in the face.

He just doesn’t see it.

Something akin to Bill Clinton’s famous political put-down of George W Bush, “It’s the economy, stupid”, applies here:

 “It’s the Work Health and Safety Act, Malcolm.”

Government departments and non-government institutions that have failed to prevent child sexual abuse and other mistreatment of children or adults in their care have so far not been brought to book, because no-one seems to have joined the criminal law dots.

Joining the criminal law dots

Dot #1

Ask yourself this question: what do the following institutional settings – an Immigration "detention centre" on Nauru, a Northern Territory juvenile correction centre, a South Australian child protection institution, a boarding school, a State (or NGO) care centre for people with a physical or intellectual disability – all have in common?

Answer: they are all workplaces — places where people work. More specifically, they’re all accommodation workplaces, where people reside continuously for months, years or decades. Only a boarding school gets any occupancy breaks — during term holidays.

Dot #2

All State/Territory laws governing health and safety at work and the Commonwealth’s Work Health and Safety Act 2011 (WHS Act), impose a duty on the workplace operator to ensure that both “workers” and “other persons” at the workplace are not exposed to preventable risks to their health (including psychological health) and safety.

Dot #3

Under those laws, the children (and adults) residing at the above-named institutions are the other personswhose health and safety the operator must protect.

Dot #4

Under these laws, failure to comply with a protective duty is a criminal offence.


How can WHS laws, if complied with, prevent sexual and other abuse?

The basic answer is fourfold. The operator duty obligations set out in these laws are:

  1. pro-actively preventative – requiring the operator to first identify and list all significant risks to health and safety, then secondly, 'so far as is reasonably practicable', take steps to eliminate or at least minimise all of them;
  2. imposed primarily on the institution – that is, on the over-all or ‘head’ workplace operator and its 'officers' (such as the CEO) – rather than just on individuals generally (although 'workers' do have a duty to 'take reasonable care');
  3. non-delegable – meaning that they can’t be transferred (to another government, for example) or contracted out (to, for example, a service provider company such as Serco or Ferrovial: any attempt to do either is 'void'; and
  4. buttressed by the deterrence effect of criminal penalties — such as, under the WHS Act in cases of 'reckless' non-compliance with a duty, operator fines of up to $3 million and officer fines of up to $600,000 and/or jail for up to five years.

Peter Dutton knows that his department is bound by the WHS Act

There’s plenty of public domain evidence to prove that Mr Dutton, as Minister for Immigration and Border Protection, knows that the Commonwealth (of Australia) – in effect his department – is the operator of the regional processing centres on Nauru and Papua New Guinea’s Manus Island. One item of evidence will suffice.

All of the 2,116 “incident notifications” that The Guardian made public on 10 August 2016 – documents that Mr Dutton’s Departmental staffers on Nauru sent to the WHS Act’s regulator, Comcare, because the WHS Act’s section 38 compels them to do so – have a box near the top where the name of workplace operator must be written.

The name entered on all – or almost all – of those incident forms is not “Government of Nauru”: it will be, you can bet, “Department of Immigration and Border Protection”.

Over to you, Malcolm Turnbull

So, Prime Minister Turnbull, the fiction that the governments of Nauru and PNG are legally responsible for the health and safety of the “other persons” (asylum seekers) who reside at the regional processing centres on their territory now stands exposed.

As a result, three things should have been obvious to the Prime Minister.

First, the target of any investigation would have to be Peter Dutton’s Department – which, going by the huge and ever-growing pile of public domain evidence, appears to be a serial offender against the WHS Act. That Act is, of course, a workplace law.

Secondly, there is already an official investigating body — Comcare.

Thirdly, however, if (as seems likely) Comcare has taken little or no enforcement action against the Department, Comcare itself might need to be investigated.

That realpolitik look brings us to the real reason that Mr Turnbull hasn’t set up a Royal Commission into alleged Nauru abuses — namely, his Government’s manic determination to attack the CFMEU for being (you guessed it) an apparent serial offender against a workplace law, in the context of (so it is claimed) ineffective regulator action.

The PM wants to re-introduce the ABCC Bill — the Australian Building and Construction Industry Commission Bill (that we had a double dissolution election over, remember?).

But if one of his own Government’s departments is an apparent serial offender against a workplace law and the regulator seems ineffective, shouldn’t there be another Bill — a Work Health and Safety Immigration and Border Protection Department Obey the Law Bill?

Imagine how delightful it would be, Mr Turnbull, for the voters to hear the Minister for Employment, Michaelia Cash, moving it in the Senate. And how even more delightful, in the Reps, to see Mr Dutton exhibit some facial expression during the debate.

On second thoughts, Prime Minister, perhaps just quietly shelve the ABCC Bill.

Max Costello is a former WorkSafe Victoria prosecuting solicitor and former Employment Law lecturer at Melbourne’s RMIT University. He co-wrote submissions to the Moss review and the Senate Select Committee on Nauru abuses.


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