Peter Dutton’s ‘rule of law’ comments could come back to haunt him

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(Meme via @KieraGorden)

Home Affairs Minister Peter Dutton and senior staff from his department could face criminal prosecution over delaying medical airlifts for refugees, says former WorkSafe Victoria prosecutor Max Costello.

AS RICHARD ACKLAND argues in 'Peter Dutton’s power grabs may yet be his undoing' in Guardian (Australia) on 8 May 2018, the Department of Home Affairs is so huge and, therefore, challenging to manage, it could pose career-ending risks for its Minister, Peter Dutton. 

Home Affairs encompasses two organisations from his former portfolio – Immigration and Border Protection and its enforcement arm, Australian Border Force – plus the Australian Federal Police, the Australian Criminal Intelligence Commission, AUSTRAC, the Office of Transport Safety, and several security agencies including ASIO. 

Ackland cites the short careers of successive ministers of the UK’s analogous Home Office, who found out, the hard way, that it’s almost impossible to keep on top of your brief when your department has so many sprawling responsibilities. 

So, watch this space.

Meanwhile, a principle Mr Dutton espouses might already be coming back to bite him. 

Mr Dutton has repeatedly stated that the rule of law is a fundamental value to which all Australians, plus visa holders and would-be Australian citizens, must be committed.  

Yet in recent months, a Dutton department has had to be told, by two judges, to obey the law. 

The issue in three separate cases before the Federal Court of Australia was whether, as a matter of law, the Commonwealth of Australia (via a Dutton department) owed a duty  of care to extremely ill children held at the Nauru regional processing centre (RPC). 

If so, the follow-up question was whether the Commonwealth must therefore fly them to Australia to get specialist medical treatment not available on Nauru. 

Ben Doherty of Guardian Australia has reported on the first two cases. Justice Murphy on 9 February 2018 and Justice Perram on 6 March 2018 both found that Australia has a duty of care, then made "fly them here" orders in relation to a pre-teen girl and a boy aged ten

In the most recent case, heard urgently on Saturday 13 April 2018, no order was needed because, at the last minute, Mr Dutton’s Department of Home Affairs agreed to put the suicidal girl on the next flight.  

A tweet by Roman Quaedvlieg, the ex-Commissioner of Australian Border Force (ABF), could further embarrass Mr Dutton. 

As reported by Guardian (Australia) on 26 April 2018, one of Mr Quaedvlieg’s tweets was responded to as follows by a former Nauru medico, Dr Nick Martin on 14 April 2018. 

'Roman, I appreciate your comments, but you must remember that every time, without fail, that I tried to get deserving cases the care they needed they were thwarted and obstructed by ABF. Every time.'

Both men knew that ABF makes the yes or no decisions on medical airlifts from RPCs. 

Mr Quadvlieg’s same day reply said: 'Understood & I accept without equivocation.…'

While not a direct admission that a Dutton agency repeatedly breached its duty of care – and was thereby a serial law-breaker – it tends to give that impression. 

What’s even worse for Minister Dutton is that there’s not just a duty of care at common law (judge-made law), there’s also a duty under statute law (made by the Australian Parliament). 

The law concerned is the Work Health and Safety Act 2011 (Cth) (the WHS Act), which carries criminal penalties for non-compliance with duties. 

It applies to Commonwealth workplaces, including detention centres, wherever located, as Ms Lynette MacLean, acting CEO of the Act’s regulator, Comcare, told a Senate Committee on 15 March 2017 (before the Manus Island RPC was closed).  

“The Department of Immigration and Border Protection … under section 19 of the WHS Act, is the 'person conducting …' [the] RPCs, on Manus Island and Nauru.”  

Specifically, the Act has, via section 12F(3), 'extended geographical jurisdiction' over Commonwealth workplaces in countries that, like Nauru, have no such law.  

Section 19 imposes a 'primary duty of care' on the Commonwealth (via its agencies and departments) to protect the health and safety of both 'workers' and 'other persons' at all Commonwealth workplaces. Section 4 says 'health' includes psychological health.  

The 'other persons' at detention centres are the residents — mainly asylum seekers plus a few refugees. 

If charged in relation to refused medical airlifts and found guilty of the WHS Act’s most serious breach of duty offence – section 31’s 'reckless' non-compliance – Home Affairs could incur a court-imposed fine of up to $3 million, while ABF’s senior officer/s could be fined up to $600,000 and/or imprisoned for up to five years. 

If such a case eventuates, the judge, at sentencing, might well mention “the rule of law”.

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', The Monthly, 22 September 2016. 

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