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A SUBMISSION – TO THE INQUIRY ON THE MIGRATION AMENDMENT (REPAIRING MEDICAL TRANSFERS) BILL 2019 – THAT HAS A UNIQUELY CRIMINAL LAW FOCUS Submitters: Robert Richter QC and Max Costello EXECUTIVE SUMMARY The Work Health and Safety Act 2011 (Cth) (“WHS Act”) applies to all Commonwealth workplaces, including, via its “extended geographical jurisdiction” (section 12F(3)), those located in countries that, like PNG and Nauru, lack such a law. As the government of Australia well knows, the WHS Act thus applies to any operating regional processing centre (“RPC”) in PNG and Nauru. (The Manus RPC ceased operating on 31/10/17.) The WHS Act’s “primary duty of care” (and related duty) provisions require the RPC operator, the Commonwealth (effectively the relevant department, Home Affairs, and its officers) to pro-actively and preventatively ensure the physical and psychological health, and the safety, of both “workers” and “other persons” (such as RPC residents). Such a duty “cannot be transferred to another person” (section 14), including therefore another government. Failure to comply with a duty is a heavily penalised criminal offence. But the pre-Medevac era saw systemic refusals or long delays of doctor-requested medical transfers to Australia. Those refusal/delay decisions were governed by a Home Affairs policy which, as recently as the 18th of December 2018, declared: Requests for temporary medical transfers to Australia … will only be considered … where the person faces a life-threatening medical emergency that would otherwise result in their death or permanent, significant disability. [Home Affairs FoI disclosure logs, 12 April 2019.] Decisions under that sociopathic policy were made by designated senior officers of Australian Border Force (“ABF” – the Home Affairs unit with operational control of all immigration holding centres). Such decisions, by putting the health of RPC residents at serious or even grave risk, were ipso facto criminal offence breaches of WHS Act duty provisions. (The fact that no prosecutions have ensued merely reflects the ‘captured’ state of the Act’s regulator, Comcare; not a state of compliance with WHS Act duties.) By contrast, medical transfers to Australia under the Medevac amendments to the Migration Act 1958 (Cth) that commenced on 1 March 2019 – amendments giving substantial and tightly time-limited primacy to recommendations of treating (or expert independent) clinicians – have been broadly compliant with WHS duty obligations. In short, the ‘Repairing Medical Transfers Bill’ is effectively an ‘anti-law and order’ measure. It would repeal the current regime that is law-abiding in relation to the WHS Act, and thus restore the former regime which, having no treating doctor primacy and no time limit on transfer decisions, was health-destroyingly and criminally law-breaking. The statute law scheme of the WHS Act does not cover ex-RPC residents located in Nauru or PNG; and whether it covers current PNG holding facilities appears uncertain. As to those situations, while Federal Court of Australia judges have held, in making injunctive ‘fly them here’ orders during the pre-Medevac era, that a common law duty of care applies, such a duty was (and is) only enforceable via court cases – which the Commonwealth lost, every time, at great cost to taxpayers. The bill ought not proceed. 2 ABOUT THE SUBMITTERS Robert Richter QC, Victorian barrister I have decades of criminal law litigation experience, mainly in the superior courts, and have prosecuted major health and safety cases. I’ve also had a long-standing and active interest in matters of civil liberties, human rights and the laws affecting asylum seekers and refugees. Max Costello, LLM Now retired, my two-decade legal career (following a twenty-five year teaching career) included five years as a prosecuting solicitor with WorkSafe Victoria and fifteen years as a lecturer in Employment Law (which included health and safety law) at Melbourne’s RMIT University. I wrote “Offshore Crimes”, The Monthly online, 22 September 2016; and “It was the best of days; it was the worst of days”, Pearls and Irritations, 6 August 2019. ________________________ CONTENTS Page Part 1: Why this submission’s exclusive focus is on the criminal law 2 Part 2: The basics of the Medevac amendments cf their repeal 3 Part 3: The potentially powerful reach of health and safety law 3 Part 4: Pre-Medevac extreme health risks created/exacerbated by Home Affairs/ABF 11 Part 5: Comcare WHS Act non-enforcements that necessitated Medevac amendments 13 Appendix A: section 15.1—category A of the Commonwealth Criminal Code 19 Appendix B: relevant provisions of the Work Health and Safety Act 2011 (Cth) 21 Appendix C: Federal Court of Australia imminent child death cases; plus a GA report 27 Appendix D: Comcare Inspector Report – Khazaei matter 31 Appendix E: Comcare Inspector Report – Manus riot, February 2014 33 _______________________ Part 1: Why this submission’s exclusive focus is on the criminal law 1.1 Other submissions will presumably focus on – and comprehensively address – various civil law matters, possibly including, for example:– breaches of international human rights conventions; High Court and other cases concerning such breaches; suing in tort law to obtain compensation for harm arising from negligent breaches of the common law duty of care; reports – by various bodies including Senate Committees, the UN, the Australian Human Rights Commission, and Amnesty International – alleging health and other neglect by Australia of asylum seekers and refugees; and so on. This submission will therefore not canvass civil law matters, except to contrast the duty of care at common law with the health and safety duties of care under statute law. 3 1.2 But the main reason for this submission’s focus on the criminal law – more precisely, on the criminal offences that consist of non-compliance with any of the statutory health and safety duties – is this. Those duties are so exactingly protective that, had they been fully complied with, there may well have been no need for the Medevac amendments to the Migration Act 1958 (Cth). Concomitantly, it was the complete failure of the relevant regulator, Comcare, to enforce compliance with the health- related duties of the Work Health and Safety Act 2011 (Cth) (“WHS Act”), in relation to people held at regional processing centres (“RPCs”), that made the Medevac amendments absolutely essential. See, further, Part 5 below. Part 2: The basics of the Medevac amendments cf their repeal 2.1 Since other submissions will no doubt give full details of the Medevac amendments and their rationale, we point to only four critical features of the Medevac provisions: 2.1.1 the stipulation that, on being notified of a request by treating doctors to transfer a person from a regional processing country to Australia (or notified of a specified related matter), the Minister must make an ‘approve’ or ‘not approve’ decision – see ss 198D(2A)(a); 198E(3A)(a); 198F(4A)(a); and 198G(2A(a); 2.1.2 the stipulation that the Minister’s ‘approve’ or ‘not approve’ decision be made within 72 hours of being notified – see ss 198D(2A)(b); 198E(3A)(b); 198F(4A)(b); and 198G(2A)(b); 2.1.3 the stipulation that, in all cases except s 198G (requests to bring family members), a ‘no response within time’ by the Minister is deemed to be an approval – see ss 198D(5); 198E(5); and 198F(6); 2.1.4 the implicit stipulation that, via treating doctors (see s 198E(7)) or the Independent Health Advice Panel (see s 199B(1) & (3), the opinion of appropriately qualified clinicians drives the transfer process, unless the Minister invokes either the security or the substantial criminal record proviso – see ss 198D(3); 198E(4)(b) & (c); 198F(5); and 198G(3). 2.2 Repeal of those Medevac stipulations could see – as happened in the pre-Medevac era – the Minster never responding to medical requests for transfer; a senior Australian Border Force (“ABF”) officer refusing a request, despite repeated further requests; or repeatedly delaying such requests/further requests1. See, further, Parts 4 and 5 below. Part 3: The potentially powerful reach of health and safety law 3.1 Section 10 of the WHS Act says “This Act binds the Commonwealth … [and makes it] liable for an offence against this Act”. 1 Dr Nick Martin exposed ABF’s role in October 2017 on ABC TV’s 7:30 program: “Every clinical decision questioned”: Doctor accuses Border Force of exerting political influence on Nauru: By Buzzfeed’s Paul Farrell and Gina Rushton, Updated 31 October 2017. Dr Martin had worked for the Commonwealth’s health contractor, International Health and Medical Services, at the Nauru RPC. 4 3.2 Like each of Australia’s State and Territory health and safety laws, the WHS Act – the Commonwealth Act – imposes a duty on workplace operators within its jurisdiction to (in brief) ensure the health (including psychological health) and safety of not only “workers” but also any “other persons” at their workplace. 3.3 But the WHS Act also has, via section 12F(3), “extended geographical jurisdiction”, presumably to protect Commonwealth public servants posted to overseas workplaces where no health and safety law applies, or no law equivalent to the WHS Act applies. 12F Interaction with Commonwealth criminal law … (3) Section 15.1 of the Criminal Code (extended geographical jurisdiction—category A) applies to an offence against this Act. Section 15.1—category A of the Criminal Code is reproduced at Appendix A. 3.4 Nauru has no health and safety legislation. PNG has an Industrial Safety, Health and Welfare Act 1961, but it’s basically a ‘Factories Act’, requiring operators to provide running water, adequate ventilation, and fit guards on the machinery. It does not refer to psychological health, or “other persons”: it is not a law equivalent to the WHS Act.

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