Safety of refugees in offshore detention is the Turnbull Government's responsibility

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(Image via www.abc.net.au)

As mental illness continues to spiral out of control in offshore detention, an asylum seeker has asked the Prime Minister who is responsible for his safety. The answer is clear in Australian law, writes Anna Talbot and Greg Barns on behalf of the Australian Lawyers Alliance.

BEHROUZ BOOCHANI asked a simple question on Q&A: why is he still in an illegal prison after three years confinement? What is his crime? Prime Minister Turnbull’s response was predictable enough the boats have to be stopped, if they start again people will drown. We’ve heard it before.

The following day, Mr Boochani’s opinion piece in The Guardian asked the Prime Minister again: who is responsible for the safety of asylum seekers on Manus Island? He reported that, since the recent PNG Supreme Court decision finding that asylum seekers and refugees were being illegally detained on Manus Island, Wilson Security has been using PNG police to control asylum seekers, leading to a newly-militarised environment.

Asylum seekers are reportedly being arrested and detained in PNG prisons. According to Mr Boochani, one was arrested for attending an internet class without registering; others for asking to be allowed into a compound.

The University of Melbourne: The Pacific Solution: What can we learn from the case of Behrouz Boochani?

However, when it comes to ensuring their own protection, asylum seekers and refugees do not appear to have access to anyone who can help them. Wilson Security forces them to make any complaints about health and safety to PNG police. This is the same police force that recently shot protesting students in Port Moresby and arrested the director of the National Fraud and Anti-Corruption Directorate (who had been investigating the Prime Minister for corruption).

Mr Boochani writes that he was required to report a basketball stand falling on his head last January to PNG police. He wrote letters for two months before his request for an inquiry actually reached them. He could not pursue the complaint, however, because Wilson Security would not let him access the police again.

Another asylum seeker claimed he suffered a chest injury when an Australian guard pushed him. His attempts to report the incident to the police were resisted until he felt compelled to threaten suicide so that he could report the assault.

When the police are asked why they do not investigate, they say that they do not receive reports.

While asylum seekers and refugees fight for basic protections from risks to their health and safety, occasionally whistle-blowers reveal what they have seen in offshore detention, bravely risking a contravention of the Australian Border Force Act 2015 which makes it an offence to reveal what happens in detention centres.

Occasionally, someone is brave enough. Recently we saw psychologist Paul Stevenson reveal the depths of atrocity he has seen on Nauru and Manus Island. Mr Stevenson has been a trauma psychologist for 43 years. Over this time, he has worked in all of Australia’s worst disasters, including the Bali Bombings and Port Arthur Massacre.

In all of this experience, however, Mr Stevenson says he has not seen anything as bad as in Australia’s offshore detention centres. Mr Stevenson lost his job for making these observations, as reported by The Guardian.  

According to Australian law, none of this should be happening.

The Commonwealth’s Work Health and Safety Act 2011 (WHS Act) applies in all immigration detention facilities, including in PNG and Nauru. The Department of Immigration and Border Protection (the Department) has duties under that Act that cannot be transferred, either to a foreign government or to a private contractor like Wilson Security.

Wherever the Department chooses to operate, it must operate according to Australian work health and safety law. This information was examined by the Australian Lawyers Alliance in their recent report Untold Damage.

These duties include not putting the health and safety of detainees at risk, and having safe systems of work. Officers are obliged to exercise due diligence in ensuring that the duties of the Department are implemented and can be held personally liable for offences. Contractors can also be liable for offences.

The Act specifically requires that adequate systems be in place to receive and act on information regarding incidents, hazards and risks. These duties are complemented by common law duties; the Federal Court recently found the Commonwealth had a duty of care in offshore detention facilities. This duty arises for a number of reasons, including the Commonwealth’s power to alleviate harm to detainees, and detainees’ degree of vulnerability.

The WHS Act also makes it an offence to engage in “discriminatory conduct” for reasons related to health and safety. If a worker takes action to resolve a health and safety problem or takes action to seek compliance with a duty or obligation under the Act, they cannot suffer negative repercussions for that action. Specifically prohibited are dismissing a worker or terminating their contract.

So, Mr Boochani, Australia is responsible for ensuring you are safe. Australia is obliged to make sure you can protect your own safety. It must allow threats to your health and safety to come to its attention. In particular, it cannot put your health and safety at risk.

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