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.
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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
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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.
3.5 Accordingly, the WHS Act applies at the Nauru RPC, and applied at PNG’s Manus Island RPC until it was closed on 31 October 2017. In those contexts, the “other persons” are – or were – the residents of an operating RPC.
3.6 “Other persons”, in relation to an ‘ordinary’ workplace on the one hand, and an RPC or an onshore immigration holding facility on the other hand, are very different.
3.7 ‘Ordinary’ workplaces include supermarkets, farms, office blocks, factories, shops, art galleries, tourist attractions – the list goes on. Nearly all the “other persons” attending those premises are customers or clients, or perhaps visitors. They are typically at the workplace for a few minutes to a few hours, perhaps a whole day, but that’s all.
3.8 By contrast, at the variously named immigration holding centres2, the “other persons” – the residents or detainees – are typically at the premises 24/7 (though RPC residents were allowed out during the day), 52 weeks a year, for years, perhaps decades, or in some cases – as the High Court in the Al-Kateb case3 declared – indefinitely, for the rest of their natural lives.
2 Table A1 below comes from the Home Affairs/ABF monthly Immigration Detention and Community Statistics Summary, all editions, at p 3. Table A1: Acronyms used in this document Acronym Description APOD Alternative Place of Detention IDC/F Immigration Detention Centre/Facility IRH Immigration Residential Housing ITA Immigration Transit Accommodation RPC Regional Processing Centre
3 Al-Kateb v Goodwin [2004] 219 CLR 562. 5 3.9 Several onshore holding centres are called “transit accommodation” centres, but the Melbourne Immigration Transit Accommodation facility (“MITA” for short) has held one boat-borne asylum seeker for over 10 years4; and two Australian-born Tamil children and their parents (from Biloela, Queensland) for 18 months5.
3.10 More precisely, the Tamil family has lived in a small flat that is officially titled an “alternative place of detention”, or “APOD”. A mother with an Australian-born child of toddler age lives in another APOD at MITA6. The Home Affairs department’s monthly “Immigration Detention and Community Statistics Summary” has been listing, nearly every month since January 2016, and every month from January 2018 onwards, ‘children in APODs’ figures. Those facts and figures reveal that the Minster’s oft-repeated claim of “no children in detention” is a serial falsehood.
3.11 But all the immigration holding facilities, whatever their titles, are not ‘ordinary’ workplaces. Given the almost permanent presence of “other persons”, they are ‘custody or care accommodation’ workplaces. Prisons, remand centres, and places housing people with a severely disabling physical or psychiatric condition are also ‘custody or care accommodation’ workplaces.
3.12 The point is that, at all the immigration holding facilities, the WHS Act obligation of the operator, Home Affairs – to ensure the health (including psychological health) and safety of those permanently present “other persons” (as well as workers) – is very demanding. A s 274 Code of Practice (see Appendix B) could help guide operators.
3.13 That obligation is set out in section 19, headed “primary duty of care”.
4 Chris Slee, “Still in detention after 10 years, Tamil refugee must now fight cancer”, Green Left Weekly, April 25, 2019. https://www.greenleft.org.au/content/still-detention-after-10-years-tamil-refugee-must-now-fight-cancer 5 “Probe ordered into detention centre care of toddler who had teeth removed”, Bianca Hall, Sydney Morning Herald, 25 July, 2019. A two-year-old Tamil girl from the Queensland town of Biloela, who is locked up in a Melbourne detention centre, had four baby teeth removed under general anaesthetic after her teeth rotted during her time in immigration detention. News of the emergency surgery comes as The Age and The Sydney Morning Herald can reveal the federal workplace authority Comcare is investigating the Department of Home Affairs for its treatment of Australian-born Tharunicaa, and her four-year-old sister Kopika. … The sisters have been detained with their mother and father … at Melbourne Immigration Transit Accommodation (MITA) since March last year. https://www.smh.com.au/national/probe-ordered-into-detention-centre-care-of-toddler-who-had-teeth-removed-20190725- p52ary.html?fbclid=IwAR04X0-GtFyHHTaQV-ElyQuKWiRvfKIVMX5mxoiU3HqrDWnsuuGLQ0qJQH4 6 “Border Force claim baby is being ‘housed’ rather than ‘detained’ “, Rebekah Holt, Crikey:INQ, 7 September 2019. … While it is not appropriate to comment on the specifics of individual cases, the Department can confirm that this individual is not being detained at MITA [Melbourne Immigration Transit Accommodation]. This individual is being housed, with her child, in an alternative place of detention (APOD). https://www.crikey.com.au/2018/09/07/border-force-claim-baby-is-being-housed-rather-than-detained/
6 3.14 The WHS Act calls a workplace operator – the person or organisation traditionally called an employer – “a person conducting a business or undertaking”, or ‘PCBU’. The PCBU is the party in over-all charge of either a ‘for profit’ business or a ‘not for profit’ undertaking7. Immigration holding facilities are undertakings. For conciseness in quoting s 19 and other provisions referring to “a person conducting a business or undertaking”, this submission will insert the abbreviation “[PCBU]” instead. The terms ‘PCBU’ and ‘workplace operator’ will be used interchangeably.
The “primary duty of care” of the PCBU
3.15 Section 19 relevantly provides as follows. Subsection (2) is the specific “other persons” duty. But subsection (3)(f) is also relevant. It effectively requires Home Affairs to ensure that all workers (and managers) are so informed, trained, instructed and supervised that they will work in such a way that “all persons” – including of course the “other persons”, the residents – have their health and safety protected.
Part 2—Health and safety duties … Division 2—Primary duty of care 19 Primary duty of care (1) A [PCBU] must ensure, so far as is reasonably practicable, the health and safety of: (a) workers engaged, or caused to be engaged by the person; and (b) workers whose activities in carrying out work are influenced or directed by the person; while the workers are at work in the business or undertaking. (2) A [PCBU] must ensure, so far as is reasonably practicable, that the health and safety of other persons is not put at risk from work carried out as part of the conduct of the business or undertaking. (3) Without limiting subsections (1) and (2), a [PCBU] must ensure, so far as is reasonably practicable: …
(f) the provision of any information, training, instruction or supervision that is necessary to protect all persons from risks to their health and safety arising from work carried out as part of the conduct of the business or undertaking; and …
7 Section 5 relevantly provides as follows. 5 Meaning of person conducting a business or undertaking (1) For the purposes of this Act, a person conducts a business or undertaking: (a) whether the person conducts the business or undertaking alone or with others; and (b) whether or not the business or undertaking is conducted for profit or gain.
7 3.16 The next two provisions quoted, ss 17 and 18 (see below), stipulate what a “so far as is reasonably practicable” duty entails. A novice PCBU might think that the “reasonably practicable” proviso makes duties not very demanding, or perhaps even provides an excuse – as in, “I can’t prevent that risk because building in a safeguard just isn’t ‘practicable’ ”. Au contraire: s 18’s step-by-step elaborations, plus s 17’s emphasis on eliminating risks, make the ‘reasonably practicable’ proviso quite demanding.
What does taking care “so far as is reasonably practicable” mean in practice?
3.17. Sections 17 and 18 effectively operate in reverse order – because, logically, the s 18 process – identifying and assessing health & safety risks then how to address them – must occur before the PCBU can then, as per s 17, implement measures to eliminate (or at least minimise) them.
3.18. Sections 17 and 18 read as follows.
Part 1—Preliminary Division 1—Introductory Subdivision 1—Principles that apply to duties …
17 Management of risks A duty imposed on a person to ensure health and safety requires the person: (a) to eliminate risks to health and safety, so far as is reasonably practicable; and (b) if it is not reasonably practicable to eliminate risks to health and safety, to minimise those risks so far as is reasonably practicable. Subdivision 2—What is reasonably practicable 18 What is reasonably practicable in ensuring health and safety In this Act, reasonably practicable, in relation to a duty to ensure health and safety, means that which is, or was at a particular time, reasonably able to be done in relation to ensuring health and safety, taking into account and weighing up all relevant matters including: (a) the likelihood of the hazard or the risk concerned occurring; and (b) the degree of harm that might result from the hazard or the risk; and (c) what the person concerned knows, or ought reasonably to know, about: (i) the hazard or the risk; and (ii) ways of eliminating or minimising the risk; and (d) the availability and suitability of ways to eliminate or minimise the risk; and (e) after assessing the extent of the risk and the available ways of eliminating or minimising the risk, the cost associated with available ways of eliminating or minimising the risk, including whether the cost is grossly disproportionate to the risk. 3.19. In ordinary language and in briefer terms, the steps below are what ss 18 then 17 require Home Affairs/ABF to do in the course of complying, systematically, with its ‘reasonably practicable’ duties such as the s 19(2) duty of care in relation to other persons at an RPC: (1) identify all possible hazards (potential dangers) to the residents’ health and safety; 8 (2) risk-assess them (how likely they are to eventuate, how harmful if they do) to sort out which are the significant risks; (3) find out what available and suitable ways there are to eliminate all significant risks or – if that’s not reasonably practicable – at least minimise (control) them; (4) as required by s 17, implement all those ways and means (unless, as to any particular risk, the cost of doing so would be grossly disproportionate to that risk).
3.20 It should be noted that ABF, which was created by the Australian Border Force Act 2015 (Cth) on 1 July 2015 has had, ever since that date, operational control over all immigration holding facilities. As the ABF website states: We are responsible for the management of good order, safety and security within immigration detention facilities, including the health and welfare of detainees. https://www.abf.gov.au/about-us/what-we-do/border-protection/immigration-detention/detention-management Here are two examples of working through the steps above.
3.21 One obvious hazard – given that the boat-borne asylum seekers had typically fled from horrendous circumstances and endured a dangerous boat journey during which some family member(s) might have drowned – arose from the damaged and delicate psychological state of RPC residents. Accordingly, steps (1) and (2) being, in effect, fait accomplis – the risk had eventuated and caused serious psychological harm – steps (3) and (4) had to be taken. That is, the Department needed to identify and then implement approaches that would eliminate the risk of further psychological harm.
3.22 But the Department didn’t do that: instead, it would call RPC residents by a number that included a number given to the boat they came on. No name, respect, or dignity, no human identity, just a so-called ‘boat number’. Boat numbers are still used.
3.23 Given that the Manus and Nauru RPCs were, respectively, quite remote and extremely remote from Australia, a second obvious step (1) hazard was that of an unexpected and serious danger to health that might not be treatable locally, such as a fractured skull and broken back (from a fall), or perhaps an ectopic pregnancy. Being sudden and/or unexpected, it’s not covered by the likelihood sub-element of step (2) but clearly belongs in the harmful – very harmful – sub-element. Accordingly, working through step (3) would mean identifying an emergency airlift to Australia ASAP as the most suitable means of minimising (controlling) that risk. However, as we shall see in Part 4 below, the Department’s failure, in August 2014, to have a simple, quick emergency airlift policy or procedure contributed to the arrival, brain dead at a Brisbane hospital, of a Manus RPC resident.
3.24 Failing to work through the steps required by section 18 and then 17 is not an offence. But those two provisions effectively translate the phrase “so far as is reasonably practicable” into practice – the point being that, if workplace operators such as Home Affairs do not carefully work through the ss 18 & 17 processes, they may well fail to ensure “so far as is reasonably practicable” that the health & safety of “other persons” at their workplace is not put at risk – whereupon they do commit a criminal offence. 9 3.25 Prime Ministers and ‘immigration’ ministers have been saying for years that the legal responsibility for the health, safety and wellbeing of RPC residents lies with the host government concerned. Not so: s 10 says that a WHS Act duty “cannot be transferred to another person” – another government, for example. As if that were not clear enough, s 272 re-emphasises the message:
Part 14—General Division 1—General provisions …
272 No contracting out A term of any agreement or contract that purports to exclude, limit or modify the operation of this Act or any duty owed under this Act or to transfer to another person any duty owed under this Act is void. The exacting duty of “officers” 3.26 Unlike some other regulatory legislation, the WHS Act, and the near identical WHS Acts of both Territories and all States bar Western Australia and Victoria, impose a prescriptive duty on “officers”. 247 Officers (1) A person who makes, or participates in making, decisions that affect the whole, or a substantial part, of a business or undertaking of the Commonwealth is taken to be an officer of the Commonwealth for the purposes of this Act. (2) A Minister of a State or the Commonwealth is not in that capacity an officer for the purposes of this Act. The section 27 duty – see below – requires them to exercise due diligence so as to ensure that their PCBU, their organisation, complies with all its duties and obligations under the Act.
3.27 A ‘due diligence’ duty is fairly exacting in itself, but sub-section (5) further defines due diligence in workplace health and safety terms, then adds five examples, leaving CEOs and other senior individuals almost no ‘wriggle room’.
Part 2—Health and safety duties … Division 4—Duty of officers, workers and other persons 27 Duty of officers (1) If a [PCBU] has a duty or obligation under this Act, an officer of the [PCBU] must exercise due diligence to ensure that the [PCBU] complies with that duty or obligation. … (4) An officer of a [PCBU] may be convicted or found guilty of an offence under this Act relating to a duty under this section whether or not the [PCBU] has been convicted or found guilty of an offence under this Act relating to the duty or obligation. (5) In this section, due diligence includes taking reasonable steps: (a) to acquire and keep up-to-date knowledge of work health and safety matters; and 10 (b) to gain an understanding of the nature of the operations of the business or undertaking of the [PCBU] and generally of the hazards and risks associated with those operations; and (c) to ensure that the [PCBU] has available for use, and uses, appropriate resources and processes to eliminate or minimise risks to health and safety from work carried out as part of the conduct of the business or undertaking; and (d) to ensure that the [PCBU] has appropriate processes for receiving and considering information regarding incidents, hazards and risks and responding in a timely way to that information; and (e) to ensure that the [PCBU] has, and implements, processes for complying with any duty or obligation of the [PCBU] under this Act; and (f) to verify the provision and use of the resources and processes referred to in paragraphs (c) to (e). Examples: For the purposes of paragraph (e), the duties or obligations under this Act of a [PCBU] may include: (a) reporting notifiable incidents; (b) consulting with workers; (c) ensuring compliance with notices issued under this Act; (d) ensuring the provision of training and instruction to workers about work health and safety; (e) ensuring that health and safety representatives receive their entitlements to training.
3.28 Leading health and safety law academics Professor Richard Johnstone and Michael Tooma, in their text, Work Health and Safety Regulation in Australia: The Model Act, describe the inclusion of an “officer” duty as one of the most significant reforms in Australian work health and safety regulation. The positive and proactive duty on each officer to take reasonable steps to exercise due diligence should result in greater senior management commitment and attention to work health and safety. Furthermore, … [WHS] inspectors can now focus … their inspections and enforcement activities on ensuring that officers are taking steps to exercise due diligence8.
3.29 As mentioned, failure to comply with a health and safety duty is a heavily penalised criminal offence. The most egregious ‘non-compliance with a health safety duty’ offence is section 31’s reckless non-compliance. Note that s 245(1) says that, if the Commonwealth is guilty of an offence, the body corporate level of penalty applies. 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) In the case of an offence committed by an individual (other than as a [PCBU] or as an officer of a [PCBU])—$300 000 or 5 years imprisonment or both. (b) In the case of an offence committed by an individual as a [PCBU] or as an officer of a [PCBU]—$600 000 or 5 years imprisonment or both.
8 Johnstone R & Tooma M, Work Health and Safety Regulation in Australia: The Model Act, The Federation Press 2012, Chapter 6, at p 135. 11 (c) In the case of an offence committed by a body corporate—$3 000 000. (2) The prosecution bears the burden of proving that the conduct was engaged in without reasonable excuse.
3.30 In our Executive Summary, we did not use the potentially confusing phrase “so far as is reasonably practicable”. Instead, we said (italics added): 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). Now that the scope and onerousness of the section 19 and 27 duties have been explained, and the maximum penalties for the Act’s most egregious offence enumerated, the above Exec Summary quote stands as an encapsulation of what this Part 3 has been about: The potentially powerful reach of health and safety law.
Part 4: Pre-Medevac extreme health risks created/exacerbated by Home Affairs/ABF 4.1 Numerous examples of such risks appear in Senate Committee hearings and reports, books, and online sources, notably Guardian Australia. We therefore only point to a few shocking examples, in which Home Affairs/ABF has done the opposite of pro- actively and preventatively ensuring RPC residents’ health. Those examples involved serious criminal offending which, as Part 5 explains, has occurred with impunity.
The Hamid Khazaei case
4.2 The August 2014 arrival of Manus asylum seeker Hamid Khazaei, brain dead, at a Brisbane hospital, eventually led to a coronial inquest and, on 30 July 2018, the release of the official report of that inquest. Here is a link to the report: https://www.courts.qld.gov.au/ data/assets/pdf file/0005/577607/cif-khazaei-h-20180730.pdf
4.3 Queensland State Coroner, Mr Terry Ryan, described the death as “preventable” (page 3) and found that the Department’s “overly bureaucratic” airlift approvals process, involving “at least four levels of public servants” in Canberra, was a contributing factor (page 99).
4.4 Mr Ryan’s Recommendation 1 was that Home Affairs “develop and implement” a simple airlift approvals process that is driven by treating doctors and has, “as an overriding consideration, the health and well-being” of RPC detainees (p 118).
4.5 A more fundamental contributing factor was the Department’s failure to stock, at the Manus clinic, Meropenem, an antibiotic that “effectively [treats … most tropical infections], including the infection suffered by Mr Khazaei” (pp 3, 78).
4.6 When those contributory factors are set against the pro-actively preventative s 19(2) duty of care, it is appears that the failure of Home Affairs to stock the vital antibiotic and to have a clear, simple and quick medical airlift procedure could amount to, prima facie, two s 31 ‘reckless non-compliance with duty’ offences.
12 A health-destroying and potentially life-threatening policy
4.7 Four and a half months after coroner Ryan made his Recommendation 1, on 18 December 2018, the official Home Affairs 'medical airlifts to Australia' policy still read as follows: Requests for tempora1y medical transfers to Australia .. . will only be considered .. . where the person faces a life-threatening medical emergency that would otherv.•ise result in their death or pennanent, significant disability. Source: Home Affairs' own Fol disclosure logs 12 April 2019. Note: only considered, not necessaiily approved.
4.8 Who knows how long that had been the official policy: perhaps it went back to when Scott Monison was the Minister. It is astonishing to realise that such a sociopathic official policy was generated and implemented by a department - presumably with the suppo1t of one or more Ministers - within the government of a supposedly civilised, Western, liberal democracy.
4.9 If there is any one reason or example to prove that the Medevac legislation must remain pa.it of the law of Australia, that is it. That is what Medevac protects us from.
Comments ofFederal Court ofAustralia judges making 'fly them here' orders 4.10 Because the existence of that policy only became public knowledge via Fol in April 2019 (after the Medevac regime had commenced), it is reasonable to presume that, during the pre-Medevac era, the FCAjudges, and the lawyers acting pro bono for ve1y ill people in 'fly them here' cases, did not know about it. But it is also reasonable to assume that Minister Dutton and ve1y senior Australian Border Force officers did know about it. The Depaitment and such officers should be prosecuted for failing to comply with their duties under ss 19 and 27 (due diligence) respectively.
4.1 1 As at the end of September 2018, according to Guardian Australia ("GA") (23/10/18):
GA was aware of 32 federal court cases since Janua1y, including 22 brought by the National Justice Project, with 19 involving children [on Naum] as the primruy applicant.
4.12 According to GA (29/9/18), defending the challenges cost Home Affairs (taxpayers) "more than $275,000 in [the 2017-18] financial yeai·" . On 23/10/18, GA repo1ted that Home Affairs told Senate Estimates on 22/10 that the 37 or so cases "heai·d in the first quaiter of2018-19 [cost] "$480,000". On 12/2/19, SBS repo1ter Jackson Gothe Snape stated that "the public has ... paid approximately $1 million in the past four years on legal fees spent on matters related to medical transfers".
4 .13 Many cases were settled at the last minute; a few were contested. Yet the government lost eve1y case that it contested: judge after judge kept making 'fly them here' orders.
4.14 Several cases involved Naum RPC children at imminent risk of death. Yet in two of them, counsel for minister Dutton's Home Affairs department sought adjournments. Appendix C contains extracts of the FCA repo1ts and a GA aiticle about one of them. 13 4.15 In the December 2017 “FRX17” case (no names were disclosed) involving a suicidal young girl, Murphy J rejected a Home Affairs application for a hearing in early 2018. Setting out his reasons for making a ‘fly the girl here’ order on 22 December 2017, Murphy J wrote: the severity of the risk that the applicant will commit suicide means that an expedited trial, even one as early as February 2018, might be too late.
4.16 In the March 2018 “AYX18” case, involving a 10-year-old boy who had made repeated attempts to kill himself, counsel sought a two-week adjournment. According to GA’s Ben Doherty (21/318): Justice Nye Perram said, “there is a significant risk the boy would not be alive by that hearing, and I am not prepared to run that risk”. But Minister Dutton was.
4.17 Admittedly, the pro bono challenges were civil law proceedings not based on health and safety legislation. (The civil law proceedings were needed because the common law duty of care is only enforceable by litigation.) But the WHS Act still applied at the Nauru RPC, and Home Affairs/ABF, as the PCBU, owed a duty of care – to pro- actively and preventatively ensure that detainees’ health and safety was not put at risk.
4.18 Further, the WHS Act’s most serious ‘breach of duty’ offence provision, section 31, states that if a duty holder, “without reasonable excuse, exposes an individual to whom that duty is owed to a risk of death or … serious illness” and is “reckless as to the risk”, the maximum penalties, for those charged and found guilty, would be a fine of $3 million (Home Affairs/ABF), and $600,000 and/or 5 years’ jail (officers).
4.19 Arguably therefore, in those imminent risk of death instances, taxpayer-funded barristers appearing at Mr Dutton’s behest were, in effect (but not in terms), asking judges to, in effect (but not in terms), approve the ongoing commission of a gravely serious crime. Having a strong border protection policy is one thing; implementing it by sociopathic and criminal means is quite another.
4.20 If the compulsory, statutory regime of the Medevac amendments is repealed, desperately ill people in PNG and Nauru will presumably be left, once again, with (ultimately) only an implied common law duty of care that has no force unless enlivened by (pro bono) litigation which, if successful, can obtain injunctive orders.
Part 5: Comcare WHS Act non-enforcements that necessitated Medevac amendments 5.1 Part 4 having established the existence of systemic criminality by Home Affairs/ABF, Part 5 will briefly catalogue the total failure of the WHS Act’s regulator, Comcare, to enforce the law – the result being a situation of ‘criminality with impunity’.
5.2 Comcare has never prosecuted Home Affairs or its predecessor, the Department of Immigration and Border Protection (DIBP), despite their apparent failures to effectively safeguard detainee health and safety, notably at the still open Nauru RPC and the former Manus Island RPC. 14 5.3 On 15 March 2017, Comcare acting CEO, Ms Lynette MacLean, told a Senate committee inquiring into alleged offshore abuse and neglect that the WHS Act applied to DIBP in relation to the Manus and Nauru RPCs, and that Comcare oversaw compliance there9.
5.4 Senator Murray Watt asked her whether DIBP had been complying with the WHS Act. Comcare took the question on notice: its 31 March written response was: Of the Inspections conducted and closed at Manus and Nauru to date, Comcare has not observed any breach of the WHS Act by DIBP.
5.5 One set of breaches not “observed” by Comcare involved the Khazaei matter.
5.6 Comcare’s cursory initial ‘investigation’ resulted in a 2014 Inspector Report – see Appendix D – that:– made no mention of the unstocked antibiotic; said the airlift delay did not “contribute” to the death; and found no evidence of a breach of the WHS Act.
5.7 But the Coroner’s Report gave Comcare a ‘second bite at the cherry’: s 232(1)(b) allows a prosecution to be brought “within 1 year after a coronial report … if it appeared from the report … that an offence had been committed against this Act”. The Report was dated 30 July 2018, so the deadline for laying charges was 29 July 2019.
5.8 In December 2018, Max Costello and another advocate with WHS knowledge wrote a long, legalistic letter to the Comcare CEO, reminding Comcare of s 232, criticising the initial investigation, and urging Comcare to conduct a through re-investigation with a view to laying charges by the deadline.
5.9 In February 2019, the same two advocates wrote again, sending the following 1-page version of the original letter, then circulating it to legal and other groups concerned with asylum seeker issues. Here is that letter, followed by three indications of support.
NB: this letter is effectively an ultra-précis of the 7-page, very legalistic 2018 original. It was endorsed by Gillian Triggs, Julian Burnside QC and 40+ other ‘legals’ or advocates.
To the CEO of Comcare, Ms Jennifer Taylor GPO Box 9905, Canberra ACT 2601 Email: [email protected] February 2019 Dear Ms Taylor,
Work Health and Safety Act 2011 (Cth) prosecution following Coroner’s Khazaei Report?
On the 30th of July 2018, the Queensland State Coroner handed down his report of the inquest
9 Hansard, Senate Legal and Constitutional Affairs Legislation References Committee, serious allegations of abuse, self-harm and neglect of asylum seekers in regional processing centres, 15 March 2017, at p 9. Ms MacLean : I would like to … make an opening statement in relation to an overview of our functions and how they apply to the committee's inquiries. … Comcare is the WHS regulator for the Department of Immigration and Border Protection, DIBP, and this covers … activities within Australia and overseas. In relation to the committee's inquiries, DIBP, under section 19 of the WHS Act, is the 'person conducting a business or undertaking' for the operation of regional processing centres, RPCs, on Manus Island and Nauru. 15 into the death of Mr Hamid Khazaei (the Report), who had been detained at the regional processing centre (RPC) on Papua New Guinea’s Manus Island. The Report recounts that, after a 1-day delay involving at least four levels of the Department of Immigration and Border Protection (DIBP), the critically ill Mr Khazaei was flown to Australia in late August 2014, arriving brain dead at Brisbane’s Mater hospital. He died on the 5th of September after life support was turned off. Here is a link to the Report. https://www.courts.qld.gov.au/ data/assets/pdf file/0005/577607/cif-khazaei-h-20180730.pdf As you know, a workplace law, the Work Health and Safety Act 2011 (Cth) (the Act): • has “extended geographical jurisdiction” at Commonwealth workplaces in countries like PNG that lack an equivalent law, and thus applied at the Manus RPC; • requires DIBP to pro-actively “ensure … the health and safety of workers; [and] that the health and safety of other persons [detainees] is not put at risk …”; • has a standard 2-year limit on the laying of charges, but gives Comcare a further 1 year if Act offences are apparent in the report or proceedings of a coroner’s inquest. Possible offences against the Act are apparent in the Report. For example, it said (at p 3) that Mr Khazaei’s death was “preventable”, and criticised the slow, unwritten, unclear airlift approval process. It also found (at p 78) that an antibiotic (Meropenem) that would “safely and effectively treat” most common tropical infections, “including Mr Khazaei’s”, was not stocked at the Manus clinic. We therefore request that Comcare move from conducting “inquiries” (as advised by your Anthony Blucher in his e-mail to us on 17/12/2018) to conducting a thorough re-investigation – aimed at compiling a full ‘brief of evidence’ in time to enable Comcare or the Commonwealth Director of Public Prosecutions (CDPP) to lay any charge(s) before the 29th July 2019 deadline. Such a re-investigation is required because Comcare in 2014 conducted a mere ‘desktop exercise’: Comcare’s “Inspector Report” just asserted (relying solely on DIBP-supplied documents – no mention of any witness statement) that the delay was not “a contributing factor” to Mr Khazaei’s sepsis-related death, and that there was no breach of the Act. Because that ‘investigation’ was so inadequate, we have copied this letter to the CDPP, Ms Sarah McNaughton SC, asking that her lawyers give Comcare “pre-brief advice” – which, as the CDPP website says, aims to “assist investigators to focus their efforts and most efficiently gather admissible evidence [that can] … prove [any alleged] offence …”. Yours sincerely,
Max Costello LLM Margaret Sinclair former WorkSafe Victoria prosecuting solicitor Diploma of Work Health and Safety refugee advocate ______Gillian Triggs Tue 11/12/2018, 4:26 PM Dear Max. I support your letters and have followed this work health and safety initiative for some time. ... Would you please add my names support for the letters. Best wishes, Gillian Triggs ______From: Robert Richter Sent: Wednesday, 12 December 2018 4:32 PM
Dear Max,
May I say that I entirely agree with your views and would be prepared to sign such a letter with one observation – which is why I am circulating this to all the recipients – I don’t believe 16 that individually signed letters have any impact and would urge you to consider a letter with a large number of signatories. That of course depends on who amongst the addressees is also prepared to sign. Let me know what responses there are and we may then have letters with multiple signatories. Cheers
Robert Richter QC Crockett Chambers Level 7, 530 Lonsdale St Melbourne VIC 3000 ______Julian Burnside Fri 14/12/2018 1:05 PM Dear Max Feel free to add my name Very best wishes for Christmas and the New Year Julian Julian Burnside AO, QC Level 30, 200 Queen St Melbourne www.julianburnside.com.au @JulianBurnside ______
5.10 Yet Comcare did not prosecute! On 6 August 2019 Comcare sent Max Costello the following email. From: Justin Napier Sent: Tuesday, 6 August 2019 12:00 PM To: Subject: RE: Query in relation to a matter on Mr Hamid Khazaei [SEC=UNOFFICIAL]
Unofficial Dear Mr Costello,
Thank you for email of 29 July 2019 to Ms Sue Weston querying if charges had been laid for Comcare by the CDPP, concerning the death of Mr Hamid Khazaei.
I am replying on Ms Weston’s behalf.
I can advise that no charges were laid for Comcare by the CDPP in relation to this matter.
After assessing the Coroner’s Report into the death of Mr Khazaei and considering the application of section 232 (1) (b) of the Work Health and Safety Act 2011 (WHS Act), it did not appear to Comcare that an offence had been committed against the WHS Act. Therefore, the CDPP was not approached to lay charges on Comcare’s behalf.
Despite this position, Comcare will nevertheless undertake a planned program of verification inspections which has been designed to confirm that the Department of Home Affairs has taken steps to address the recommendations as outlined in the Coroner’s report.
Yours sincerely
Justin Napier
General Manager Regulatory Operations Group Comcare A: GPO Box 9905, Canberra, ACT 2601 1300 366 979 | www.comcare.gov.au 17 5.11 On 9 August 2019, Costello replied in detail, but only paragraphs (8) and (9) are sufficiently pertinent to this submission to be worth quoting from. (8) I find your email's statement, that "After assessing the Coroner’s Report ... it did not appear to Comcare that an offence had been committed against the WHS Act", incredible. I feel sure that thousands of people, including quite a few lawyers, who have followed the Khazaei matter with interested concern, will also be incredulous. My resultant preliminary view is that any claim by Comcare to have been – in relation to immigration detainee-related apparent offences against the WSH Act – a regulator of competence and integrity, would be seriously, if not terminally, damaged by Comcare's 'no offence to see here' perspective on the Khazaei matter. (9) I now respond as follows to your email's last paragraph, which advises that Comcare will "undertake a planned program of verification inspections ... to confirm that ... Home Affairs has taken steps to address the recommendations ... [of] the Coroner’s report".
[Costello quoted the previously mentioned sociopathic policy, then continued.]
… It is concerning that, 4.5 months after the coroner's Recommendation 1, Comcare had apparently not even examined, much less responded to, that sociopathic policy. … Given that the coroner's recommendations were made on 30 June 2018, it seems somewhat tardy to be only planning to confirm implementation progress over 12 months later.
5.12 Comcare’s most shameless non-investigation was its failure to ask the Department to hand over the 15 reports – of child sexual assault at the Nauru RPC – that Comcare knew were in the Department’s (electronic) possession.
5.13 Comcare knew so because Max Costello’s 14 August 2015 “please prosecute” letter to Comcare quoted the transcript of a Senate Select Committee’s proceedings on 20 July 2015. It recorded Ms Cheryl-Anne Moy (First Assistant Secretary, Children, Community and Settlement Services Division) telling Senators that the Department had received the 15 reports between late 2012 and 30 June 2015. Ms Moy: Okay. We are looking at from 14 September 2012 to 30 June 2015. I think you will find that the numbers that Transfield [the main contractor at the Nauru RPC] provided included all types of assaults against children … [As to the number] of sexual assault against minors, it was 15. Senator HANSON-YOUNG: So you believe that all the incidents that Transfield have in their reports to us have all been reported to the department? Ms Moy: Through the normal incident reporting— Senator HANSON-YOUNG: You would be aware of all of them? Ms Moy: Yes. Senator HANSON-YOUNG: In effectively real-time; the moment that they are reported? Ms Moy: Not necessarily the moment they are reported, but they are reported with regularity through to the department.
5.14 Costello’s letter named 1 October 2014 as the date when the offences concerned first came to Comcare’s notice: so the s 232(1)(a) 2-year deadline for laying charges was 1 October 2016. Yet during the 15/3/17 Senate Committee hearing previously referred to (at paragraph 5.3), five and a half months after the 2-year time limit had expired (a
limit Comcare acknowledged), the following extraordinary Q & A exchange occurred. 18 Senator McKIM: But you have not yet asked for a copy of all incident reports, have you? Ms MacLean : No, but we will. …
5.15 By not asking, in time, for those 15 vital items of evidence, Comcare permanently deprived those children and their families of even the possibility of some justice.
5.16 As noted, Comcare told the 15/3/17 Committee in writing on 31/3/17 that, during its inspections to that date, had “not observed any breach of the WHS Act by DIBP”.
5.17 One such inspection concerned the 3-day riot at the Manus RPC in February 2014: 69 people were injured, some seriously, and asylum seeker Reza Barati was murdered. Astonishingly, Comcare’s Inspector Report EVE00224256-0001 – see Appendix E – found that the Department “appeared … to provide a safe workplace …”.
5.18 As noted (at paragraph 3.26), s 247(2) makes clear that Ministers are not “officers” – which effectively means that Ministers can’t be prosecuted under the WHS Act.
5.19 But had Comcare prosecuted the Department and a senior officer in, say, 2015, over alleged RPC-related offences; so that by, say, July 2016, both were found guilty, with the Department being fined $2 m and the officer jailed for 2 years, the (disgraced) offshore cruelty regime could have been ended by, say, 1 October 2016.
5.20 If that had happened, the sociopathic ‘not until near death’ airlift policy would been replaced; some six deaths would have been prevented; and the remorseless mass destruction, offshore, of physical and psychological health would have been curtailed.
5.21 But Comcare didn’t prosecute then, and (as per Khazaei) isn’t prosecuting now.
5.22 The systemic, extreme breaches of WHS Act duties by Home Affairs/ABF are not accidental or random: they are officially approved (or condoned): their criminality is thus knowing and deliberate – that is, organised. Comcare, by its ongoing ‘nothing to see here’ approach, is therefore, in effect, running protection for organised crime.
5.23 As to onshore matters, all the WHS/OHS inspectorates bar Comcare’s issue “improvement notices” far more often than they lay criminal charges. Improvement notices – see s 191, Appendix B – tell workplace operators that they’re not complying with duty X, explain how, then require compliance by reasonable date Y, thereby nipping WHS risks in the bud.
5.24 Safe Work Australia’s Comparative Performance Monitoring Report, Part 2, 20th Edition – December 2018, at p 14, reported that, in 2016–17, NSW and Vic regulators issued, respectively, 7,513 and 15,912 such notices: Comcare issued 8.
5.25 As with the banks, a Royal Commission on ‘criminality with impunity’ is needed.
5.26 More immediately, the Medevac amendments must be retained as a vital bulwark against shameless criminality and sociopathic cruelty, both of which are so deeply embedded in policy and practice as to warrant national and international outrage.
______19 APPENDIX A: section 15.1—category A, Criminal Code
Part 2.7—Geographical jurisdiction …
Division 15—Extended geographical jurisdiction 15.1 Extended geographical jurisdiction—category A (1) If a law of the Commonwealth provides that this section applies to a particular offence, a person does not commit the offence unless: (a) the conduct constituting the alleged offence occurs: (i) wholly or partly in Australia; or (ii) wholly or partly on board an Australian aircraft or an Australian ship; or (b) the conduct constituting the alleged offence occurs wholly outside Australia and a result of the conduct occurs: (i) wholly or partly in Australia; or (ii) wholly or partly on board an Australian aircraft or an Australian ship; or (c) the conduct constituting the alleged offence occurs wholly outside Australia and: (i) at the time of the alleged offence, the person is an Australian citizen; or (ii) at the time of the alleged offence, the person is a body corporate incorporated by or under a law of the Commonwealth or of a State or Territory; or (d) all of the following conditions are satisfied: (i) the alleged offence is an ancillary offence; (ii) the conduct constituting the alleged offence occurs wholly outside Australia; (iii) the conduct constituting the primary offence to which the ancillary offence relates, or a result of that conduct, occurs, or is intended by the person to occur, wholly or partly in Australia or wholly or partly on board an Australian aircraft or an Australian ship. Note: The expression offence is given an extended meaning by subsections 11.2(1) and 11.2A(1), section 11.3 and subsection 11.6(1). Defence—primary offence (2) If a law of the Commonwealth provides that this section applies to a particular offence, a person is not guilty of the offence if: (aa) the alleged offence is a primary offence; and (a) the conduct constituting the alleged offence occurs wholly in a foreign country, but not on board an Australian aircraft or an Australian ship; and (b) the person is neither: (i) an Australian citizen; nor (ii) a body corporate incorporated by or under a law of the Commonwealth or of a State or Territory; and (c) there is not in force in: (i) the foreign country where the conduct constituting the alleged offence occurs; or (ii) the part of the foreign country where the conduct constituting the alleged offence occurs; a law of that foreign country, or a law of that part of that foreign country, that creates an offence that corresponds to the first-mentioned offence. Note: A defendant bears an evidential burden in relation to the matters in subsection (2). See subsection 13.3(3). 20 (3) For the purposes of the application of subsection 13.3(3) to an offence, subsection (2) of this section is taken to be an exception provided by the law creating the offence.
Defence—ancillary offence
(4) If a law of the Commonwealth provides that this section applies to a particular offence, a person is not guilty of the offence if: (a) the alleged offence is an ancillary offence; and (b) the conduct constituting the alleged offence occurs wholly in a foreign country, but not on board an Australian aircraft or an Australian ship; and (c) the conduct constituting the primary offence to which the ancillary offence relates, or a result of that conduct, occurs, or is intended by the person to occur, wholly in a foreign country, but not on board an Australian aircraft or an Australian ship; and (d) the person is neither: (i) an Australian citizen; nor (ii) a body corporate incorporated by or under a law of the Commonwealth or of a State or Territory; and (e) there is not in force in: (i) the foreign country where the conduct constituting the primary offence to which the ancillary offence relates, or a result of that conduct, occurs, or is intended by the person to occur; or (ii) the part of the foreign country where the conduct constituting the primary offence to which the ancillary offence relates, or a result of that conduct, occurs, or is intended by the person to occur; a law of that foreign country, or a law of that part of that foreign country, that creates an offence that corresponds to the primary offence. Note: A defendant bears an evidential burden in relation to the matters in subsection (4). See subsection 13.3(3). (5) For the purposes of the application of subsection 13.3(3) to an offence, subsection (4) of this section is taken to be an exception provided by the law creating the offence.
21 APPENDIX B: relevant WHS Act provisions Work Health and Safety Act 2011 (Cth) Part 1—Preliminary 2 Commencement This Act commences on 1 January 2012. Division 3—Interpretation Subdivision 1—Definitions 4 Definitions In this Act: … health means physical and psychological health. 8 Meaning of workplace (1) A workplace is a place where work is carried out for a business or undertaking and includes any place where a worker goes, or is likely to be, while at work. (2) In this section, place includes: (a) a vehicle, vessel, aircraft or other mobile structure; and (b) any waters and any installation on land, on the bed of any waters or floating on any waters. Subdivision 2—Other important terms 10 Act binds the Commonwealth (1) This Act binds the Commonwealth. (2) The Commonwealth is liable for an offence against this Act. 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. Part 2—Health and safety duties Division 1—Introductory Subdivision 1—Principles that apply to duties 14 Duties not transferrable A duty cannot be transferred to another person. 16 More than 1 person can have a duty (1) More than 1 person can concurrently have the same duty. (2) Each duty holder must comply with that duty to the standard required by this Act even if another duty holder has the same duty. (3) If more than 1 person has a duty for the same matter, each person: (a) retains responsibility for the person’s duty in relation to the matter; and (b) must discharge the person’s duty to the extent to which the person has the capacity to influence and control the matter … . 17 Management of risks A duty imposed on a person to ensure health and safety requires the person: (a) to eliminate risks to health and safety, so far as is reasonably practicable; and (b) if it is not reasonably practicable to eliminate risks to health and safety, to minimise those risks so far as is reasonably practicable. 22 Subdivision 2—What is reasonably practicable 18 What is reasonably practicable in ensuring health and safety In this Act, reasonably practicable, in relation to a duty to ensure health and safety, means that which is, or was at a particular time, reasonably able to be done in relation to ensuring health and safety, taking into account and weighing up all relevant matters including: (a) the likelihood of the hazard or the risk concerned occurring; and (b) the degree of harm that might result from the hazard or the risk; and (c) what the person concerned knows, or ought reasonably to know, about: (i) the hazard or the risk; and (ii) ways of eliminating or minimising the risk; and (d) the availability and suitability of ways to eliminate or minimise the risk; and (e) after assessing the extent of the risk and the available ways of eliminating or minimising the risk, the cost associated with available ways of eliminating or minimising the risk, including whether the cost is grossly disproportionate to the risk. Part 2—Health and safety duties 14 Duties not transferrable A duty cannot be transferred to another person. 17 Management of risks A duty imposed on a person to ensure health and safety requires the person: (a) to eliminate risks to health and safety, so far as is reasonably practicable; and (b) if it is not reasonably practicable to eliminate risks to health and safety, to minimise those risks so far as is reasonably practicable. 18 What is reasonably practicable in ensuring health and safety In this Act, reasonably practicable, in relation to a duty to ensure health and safety, means that which is, or was at a particular time, reasonably able to be done in relation to ensuring health and safety, taking into account and weighing up all relevant matters including: (a) the likelihood of the hazard or the risk concerned occurring; and (b) the degree of harm that might result from the hazard or the risk; and (c) what the person concerned knows, or ought reasonably to know, about: (i) the hazard or the risk; and (ii) ways of eliminating or minimising the risk; and (d) the availability and suitability of ways to eliminate or minimise the risk; and (e) after assessing the extent of the risk and the available ways of eliminating or minimising the risk, the cost associated with available ways of eliminating or minimising the risk, including whether the cost is grossly disproportionate to the risk. NB: for conciseness, the acronym “PCBU” below replaces “person conducting a business or undertaking”. Division 2—Primary duty of care 19 Primary duty of care (1) A [PCBU] must ensure, so far as is reasonably practicable, the health and safety of: (a) workers engaged, or caused to be engaged by the person; … while the workers are at work in the business or undertaking. (2) A [PCBU] must ensure, so far as is reasonably practicable, that the health and safety of other persons is not put at risk from work carried out as part of the conduct of the business or undertaking. (3) Without limiting subsections (1) and (2), a [PCBU] must ensure, so far as is reasonably practicable: 23 … (f) the provision of any information, training, instruction or supervision that is necessary to protect all persons from risks to their health and safety arising from work carried out as part of the conduct of the business or undertaking; … Division 3—Further duties of [PCBUs] 20 Duty of [PCBUs] involving management or control of workplaces (1) In this section, person with management or control of a workplace means a [PCBU] to the extent that the business or undertaking involves the management or control, in whole or in part, of the workplace … (2) The person with management or control of a workplace must ensure, so far as is reasonably practicable, that the workplace, the means of entering and exiting the workplace and anything arising from the workplace are without risks to the health and safety of any person. Division 4—Duty of officers, workers and other persons 27 Duty of officers (1) If a [PCBU] has a duty or obligation under this Act, an officer of the [PCBU] must exercise due diligence to ensure that the [PCBU] complies with that duty or obligation. … (5) In this section, due diligence includes taking reasonable steps: (a) to acquire and keep up-to-date knowledge of work health and safety matters; and (b) to gain an understanding of the nature of the operations of the business or undertaking of the [PCBU] and generally of the hazards and risks associated with those operations; and (c) to ensure that the [PCBU] has available for use, and uses, appropriate resources and processes to eliminate or minimise risks to health and safety from work carried out as part of the conduct of the business or undertaking; and (d) to ensure that the [PCBU] has appropriate processes for receiving and considering information regarding incidents, hazards and risks and responding in a timely way to that information; and (e) to ensure that the [PCBU] has, and implements, processes for complying with any duty or obligation of the [PCBU] under this Act; and (f) to verify the provision and use of the resources and processes referred to in paragraphs (c) to (e). Examples: For the purposes of paragraph (e), the duties or obligations under this Act of a [PCBU] may include: (a) reporting notifiable incidents; (b) consulting with workers; (c) ensuring compliance with notices issued under this Act; (d) ensuring the provision of training and instruction to workers about work health and safety; (e) ensuring that health and safety representatives receive their entitlements to training.
28 Duties of workers While at work, a worker must: (a) take reasonable care for his or her own health and safety; and (b) take reasonable care that his or her acts or omissions do not adversely affect the health and safety of other persons; and (c) comply, so far as the worker is reasonably able, with any reasonable instruction that is given by the [PCBU] to allow the person to comply with this Act; and (d) co-operate with any reasonable policy or procedure of the [PCBU] relating to health or safety at the workplace that has been notified to workers. Division 5—Offences and penalties 30 Health and safety duty In this Division, health and safety duty means a duty imposed under Division 2, 3 or 4 of this Part. 24 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) In the case of an offence committed by an individual (other than as a [PCBU] or as an officer of a [PCBU])—$300 000 or 5 years imprisonment or both. (b) In the case of an offence committed by an individual as [PCBU] or as an officer of a [PCBU]—$600 000 or 5 years imprisonment or both. (c) In the case of an offence committed by a body corporate [see s 245]—$3 000 000. (2) The prosecution bears the burden of proving that the conduct was engaged in without reasonable excuse. 32 Failure to comply with health and safety duty—Category 2 A person commits a Category 2 offence if: (a) the person has a health and safety duty; and (b) the person fails to comply with that duty; and (c) the failure exposes an individual to a risk of death or serious injury or illness. Penalty: (a) In the case of an offence committed by an individual (other than as a [PCBU] or as an officer of a [PCBU])—$150 000. (b) In the case of an offence committed by an individual as a [PCBU] or as an officer of a [PCBU]—$300 000. (c) In the case of an offence committed by a body corporate [see s 245]—$1 500 000. Part 10—Enforcement measures Division 1—Improvement notices 191 Issue of improvement notices (1) This section applies if [a Comcare] inspector reasonably believes that a person: (a) is contravening a provision of this Act; or (b) has contravened a provision in circumstances that make it likely that the contravention will continue or be repeated. (2) The inspector may issue an improvement notice requiring the person to: (a) remedy the contravention; or (b) prevent a likely contravention from occurring; or (c) remedy the things or operations causing the contravention or likely contravention. … Division 2—Prohibition notices 195 Power to issue prohibition notice (1) This section applies if an inspector reasonably believes that: (a) an activity is occurring at a workplace that involves or will involve a serious risk to the health or safety of a person emanating from an immediate or imminent exposure to a hazard; or (b) an activity may occur at a workplace that, if it occurs, will involve a serious risk to the health or safety of a person emanating from an immediate or imminent exposure to a hazard. (2) The inspector may give a person who has control over the activity a direction prohibiting the carrying on of the activity, or the carrying on of the activity in a specified way, until an inspector is satisfied that the matters that give or will give rise to the risk have been remedied. 25 (3) The direction may be given orally, but must be confirmed by written notice (a prohibition notice) issued to the person as soon as practicable. Part 13—Legal proceedings Division 1—General matters 231 Procedure if prosecution is not brought (1) If: (a) a person reasonably considers that the occurrence of an act, matter or thing constitutes a Category 1 offence or a Category 2 offence; and (b) no prosecution has been brought in relation to the occurrence of the act, matter or thing after 6 months but not later than 12 months after that occurrence; the person may make a written request to the regulator that a prosecution be brought. 232 Limitation period for prosecutions (1) Proceedings for an offence against this Act may be brought … : (a) within 2 years after the offence first comes to the notice of the regulator; (b) within 1 year after a coronial report was made or a coronial inquiry or inquest ended, or an official inquiry ended if it appeared from the report or the proceedings at the inquiry or inquest that an offence had been committed against this Act; Division 5—The Commonwealth 245 Offences and the Commonwealth (1) If the Commonwealth is guilty of an offence against this Act, the penalty to be imposed on the Commonwealth is the penalty applicable to a body corporate. 247 Officers (1) A person who makes, or participates in making, decisions that affect the whole, or a substantial part, of a business or undertaking of the Commonwealth is taken to be an officer of the Commonwealth for the purposes of this Act. 248 Responsible agency for the Commonwealth … (3) If proceedings are brought against the Commonwealth for an offence against this Act or in relation to a contravention of this Act, the responsible agency in relation to the offence or contravention may be specified in any document initiating, or relating to, the proceedings. Part 14—General Division 1—General provisions 272 No contracting out A term of any agreement or contract that purports to exclude, limit or modify the operation of this Act or any duty owed under this Act or to transfer to another person any duty owed under this Act is void. Division 2—Codes of practice 274 Approved codes of practice (1) The Minister may approve a code of practice for the purposes of this Act and may vary or revoke an approved code of practice.
(2) The Minister may only approve, vary or revoke a code of practice under subsection (1) if that code of practice, variation or revocation was developed by a process that involved consultation between: (a) the Governments of the Commonwealth and each State and Territory; and (b) unions; and (c) employer organisations. 26 (3) A code of practice may apply, adopt or incorporate any matter contained in a document formulated, issued or published by a person or body whether: (a) with or without modification; or (b) as in force at a particular time or from time to time. Note: Subsection (4) is included in some jurisdictions to deal with publication and commencement of an approved code of practice. Under this Act, an approved code of practice is a legislative instrument (see section 273B(1)) and so will be registered on the Federal Register of Legislation and commence in accordance with section 12 of the Legislation Act 2003. (5) As soon as practicable after approving a code of practice, or varying or revoking an approved code of practice, the Minister must ensure that notice of the approval, variation or revocation is published in a newspaper circulating generally throughout the Commonwealth.
(6) The regulator must ensure that a copy of: (a) each code of practice that is currently approved; and (b) each document applied, adopted or incorporated (to any extent) by an approved code of practice; is available for inspection by members of the public without charge at the office of the regulator during normal business hours.
275 Use of codes of practice in proceedings
(1) This section applies in a proceeding for an offence against this Act. (2) An approved code of practice is admissible in the proceeding as evidence of whether or not a duty or obligation under this Act has been complied with.
(3) The court may: (a) have regard to the code as evidence of what is known about a hazard or risk, risk assessment or risk control to which the code relates; and (b) rely on the code in determining what is reasonably practicable in the circumstances to which the code relates. Note: See section 18 for the meaning of reasonably practicable.
(4) Nothing in this section prevents a person from introducing evidence of compliance with this Act in a manner that is different from the code but provides a standard of work health and safety that is equivalent to or higher than the standard required in the code.
27 APPENDIX C: FCA imminent child death cases; a GA report
FEDERAL COURT OF AUSTRALIA FRX17 as litigation representative for FRM17 v Minister for Immigration and Border Protection [2018] FCA 63
ORDERS VID 1388 of 2017 FRX17 AS LITIGATION REPRESENTATIVE FOR FRM17 BETWEEN: Applicant MINISTER FOR IMMIGRATION AND BORDER PROTECTION First Respondent COMMONWEALTH OF AUSTRALIA Second Respondent SECRETARY OF THE DEPARTMENT OF IMMIGRATION AND BORDER PROTECTION AND: Third Respondent JUDGE: MURPHY J DATE OF ORDER: 22 DECEMBER 2017
REASONS FOR JUDGMENT MURPHY J: INTRODUCTION
…
6 Following the applicant’s attempted suicide and her continued suicidal ideation the applicant’s representatives provided the respondents with Professor Newman’s initial report and requested the respondents urgently move the applicant to Australia so that she could receive appropriate specialist mental health care assessment and treatment. The respondents declined to transfer the applicant. 7 On 20 December 2017 the applicant’s representatives filed the proceeding herein, seeking an interlocutory injunction to remove the applicant from Nauru to a place where she could receive appropriate mental health care treatment. I listed the application for urgent hearing on the afternoon of Friday, 22 December 2017. 8 The respondents opposed the grant of an injunction. I made orders that day to require that, as soon as reasonably practicable and until the hearing and determination of the action or further order, the respondents remove the applicant from Nauru and place her in a specialist child mental health facility with the capacity to perform a comprehensive tertiary level child psychiatric assessment, in accordance with Professor Newman’s recommendations. I fixed an expedited timetable so that the substantive application may be listed for hearing shortly after 7 February 2018. 9 I now provide my reasons. In broad summary I granted the interlocutory injunction because: (a) for the purposes of the interlocutory application only, the respondents concede that a prima facie case exists. I take this as a concession that there is a serious question to be tried as to whether: (i) the respondents owe the applicant a duty of care to provide her with a level of medical care which is reasonably designed to meet her mental health care needs; 28 (ii) in the circumstances of the present case, the content of the duty includes a duty to remove the applicant from Nauru to a place where she can be admitted for inpatient assessment and treatment in a specialist child mental health facility; and (iii) the Court has the power to make such an order on the final determination of this matter. (b) the balance of convenience strongly favours the grant of an injunction. If the interlocutory injunction is granted and the applicant is unsuccessful at the final hearing, it can be argued that the Commonwealth’s resources have been wasted. Against that, if the injunction is not granted, there is an extreme risk this unfortunate young girl will commit suicide or otherwise self-harm, or that her mental health will further deteriorate. The injury or damage the applicant may suffer if an injunction is refused – death or a further serious deterioration in her health – carries far more weight in the balance than the wasted expenditure the Commonwealth may suffer if an injunction is granted. Further, given the applicant’s extreme suicide risk, the relief sought in the proceeding may become nugatory unless the injunction is granted.
[AT END OF DOCUMENT] … the severity of the risk that the applicant will commit suicide means that an expedited trial, even one as early as February 2018, might be too late.
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FEDERAL COURT OF AUSTRLIA ORDERS NSD 279 of 2018 AYX18 BY HIS LITIGATION REPRESENTATIVE AYY18 BETWEEN: Applicant MINISTER FOR HOME AFFAIRS First Respondent COMMONWEALTH OF AUSTRALIA Second Respondent SECRETARY OF THE DEPARTMENT OF HOME AFFAIRS AND: Third Respondent JUDGE: PERRAM J DATE OF ORDER: 6 MARCH 2018 Upon the Applicant by her counsel giving the usual undertaking as to damages: THE COURT ORDERS THAT: 1. As soon as reasonably practicable, the First Respondent to cause to transfer the Applicant and her son, AYX18, for assessment and admission of AYX18 into a specialist in-patient child and adolescent psychiatrist unit in accordance with the recommendations of Dr Vernon Reynolds in his report of 11 February 2018, or for such other treatment as agreed between the parties. 2. Liberty to restore on short notice. 3. Costs to be costs in the cause.
29 Guardian Australia Court orders that boy, 10, at risk of suicide on Nauru be treated in Australia Exclusive: Home affairs department argued against move but judge cites ‘significant risk’ he would die if left on island Ben Doherty Wed 21 Mar 2018 08.19 AEDT Last modified on Wed 21 Mar 2018 08.21 AEDT
A 10-year-old refugee boy who has made repeated attempts to kill himself while held on Nauru has been ordered moved to Australia for acute psychological care, with a judge saying the boy would be at imminent risk of dying if left in the regional processing centre.
In the federal court this month, lawyers representing the boy – known in court documents as AYX18 – applied for an injunction to have him moved to tertiary-level psychiatric care.
The home affairs department – which controls Australia’s offshore processing regime – fought the injunction, arguing that there was sufficient healthcare on the island to treat the boy and asking the court to delay the court hearing a week.
Justice Nye Perram disagreed and ordered that the boy be immediately returned to Australia for treatment: “A delay … cannot be justified, there is a significant risk the boy would not be alive by that hearing, and I am not prepared to run that risk.”
The boy and his mother, represented by the National Justice Project, have been moved to Australia and the boy is receiving treatment.
The 10-year-old also has a long-running physical health issue that requires surgery. The court heard from the government’s own health contractor, International Health and Medical Services, that the Nauru hospital was unsafe for surgery and that patients had died during routine operations.
“Although the hospital at Nauru is said to be able to fix that problem, two of its patients died as a result of the actions of the anaesthetist on the island who was then arrested,” Perram’s judgment said. “The advice of IHMS is that the hospital is not recommended.
“I mention this to reject the minister’s submission that that at least the [physical condition] could be treated in Nauru. I also reject the minister’s submission that the mother’s refusal to permit the boy to be operated upon in Nauru might be seen as part of the problem.”
Perram said the boy’s mother’s reluctance to allow him to undergo surgery on Nauru was understandable. “It can hardly be seen as unreasonable not to expose her son to that kind of risk.”
The boy, his mother and father, fled Iran in 2013 and arrived in Australia by boat on 23 July that year, just four days after the then prime minister, Kevin Rudd, decreed that no asylum seekers arriving by boat would ever be settled in Australia.
The family were recognised as refugees – suffering from a well-founded fear of persecution in their homeland – in 2014. On Nauru the boy’s father had a bicycle accident which resulted in a serious brain injury: he was moved to Australia for medical treatment and has remained in immigration detention in Brisbane since that time. 30 The boy’s mental health has been of concern to his family since late 2013, when he was just six years old. Beginning in late 2013 he began to suffer night terrors and had a fortnight-long episode of suicidal ideation.
He was recommended for transfer to Australia in July 2017. This was rejected five months later in December.
Since then “the boy’s mental health has gone downhill rapidly”, Perram told the court.
In January he attempted suicide by overdosing on drugs, tried to strangle himself in hospital and grabbed a paring knife that had to be wrestled from him.
A psychiatrist, Dr Gordon, reported that the child’s mental condition was critical. “[AYX18] is deteriorating significantly with the current care provided on Nauru by IHMS and the local hospital. I strongly recommend that [AYX18] and his mother are taken to the mainland for reunification with his father and surgical and psychiatric treatment by clinicians specialising in child psychiatry.
“Should these recommendations not be followed, then I am very concerned about the developmental risks to [AYX18] in developing a more chronic severe mental health problem which will be very difficult to treat, his current and real risk of further suicide attempts and completing suicide, as well as the risk of his mother attempting or completing suicide.”
The judge ruled that Australia “held a duty of care” to the boy and his family as the entity that had placed them on the island and which ran the offshore processing centre and the regime that held them.
Perram said while he conceded the cost to move the boy and his mother to Australia and to house and treat them would be significant, the requirement to provide sufficient care outweighed any monetary cost or injury to government policy.
“Given that the applicant [the boy’s mother] is in Nauru because that is where the minister desires her to be, it is perhaps a little unreasonable to complain of a circumstance which the minister may himself be seen to be the author.”
The federal court order is at least the second concerning a critically mentally ill child held in regional processing on Nauru in recent months. In December Justice Bernard Murphy granted an urgent injunction to move a pre-teen girl off the island, ruling she was at “extreme risk” of making further suicide attempts if left there.
“There is an extreme risk this unfortunate young girl will commit suicide or otherwise self-harm, or that her mental health will further deteriorate,” Murphy said. “Being stuck on Nauru since 2013, coupled with the recent separation of her parents, appears to have taken a serious toll on the applicant’s mental health.”
The girl was transferred to Australia, where she is receiving treatment.
31 APPENDIX D: Comcare Inspector Report, Khazaei matter Note: there are some redactions because the Report was obtained via FoI. INSPECTOR REPORT Work Health and Safety Act 2011 (Cth) (WHS Act) Inspector’s activity/objective I conducted a compliance inspection to enquire into or investigate a reported incident.
Relevant date 27/08/2014 Reference no. EVE00229456-0001 Entry time N/A Departure time N/A
SUMMARY OF COMMITMENTS/OUTCOMES As a result of the notification submitted by the … (DIBP), Comcare commenced a Liaison Inspection activity into the incident whereby [REDACTED] was receiving medical treatment in [REDACTED] after being [REDACTED] for [REDACTED] through what was believed to be a [REDACTED]. Comcare was notified on 27 August 2014 that the injured [REDACTED] transported [REDACTED] for treatment. An update was provided on 28 August 2014 in which it was noted that the [REDACTED] subsequently died on 5 September Information outlining the overall timeframe and incident was requested from DIBP. This initial information was supplied within days of the request, however, when further information was requested, the time taken to supply this was approximately six weeks. DIPB have indicated that it is continuing to review the circumstances surrounding [REDACTED] death as the coronial inquiry progresses and expect that the internal review will not be finalised until after the coronial inquest has been concluded. Whilst no definitive cause of the initial injury or [REDACTED] could be determined, the information supplied to Comcare did however appear to indicate that a protracted timeframe occurred from when the initial request to [REDACTED] was made by [REDACTED] to when an approval was granted. Whilst the delay in initiating and finalising the approval process was not necessarily a contributing factor to the final outcome of this incident, the limited medical facilities available to those in offshore processing locations may mean a delay in evacuation could be the deciding factor in the final outcome in any further incidents that may occur. Based on the information provided by DIBP I have made recommendations later in this report. …
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SUMMARY OF INSPECTOR’S ACTIONS AND OBSERVATIONS (Including any powers exercised, recommendations or directions made and compliance/s observed ☐ Powers exercised X Powers not exercised A Liaison Inspection was commenced on 3 September 2014 requesting a detailed chronology of events surrounding the incident along with copies of internal investigation reports, corrective action plans and contracts for services. The chronology indicated that the injured s47F had received initial medical care within suitable timeframes and of an appropriate standard. Further information in the form of email communication, situation reports and medical case files was requested on 11 September 2014. Whilst no specific timeframe was given for the supply of this information, it was delayed in its release due to internal mechanics of the department and was finally provided some six weeks later on 28 October 2014. The information provided indicated the following points: • s47F initially presented on 23 August 2014 for medical attention after suffering s47F for approximately 2 days. s4 was admitted to s47F care and monitored overnight. • Whilst it was initially reported that s47F sustained a s47F no definitive cause or mechanism of s47F could be determined. 32
• s47F was kept under medical observation on 24 August 2014 as s4 condition remained unchanged. • Due to the overnight deterioration of s47F condition, a formal request for s47F Hospital was sent by s47F on 25 August 2014 at approximately s47F . • An enquiry regarding possible treatment options other than s47F was sent on 25 August 2014 at approximately s47F . • Final approval s47F was provided on 26 August 2014 at approximately s47F • s47F occurred late afternoon on 26 August 2014. • Further deterioration of s47F condition resulted in subsequent s47F Hospital. • Thiss47F occurred on 27 August 2014 at approximately s47F .
On review of the information provided, it was determined that there were no apparent breaches of legislation. The information did however appear to indicate that approximately 20 hours after the initial request for s47F process was approximately five and a half hours after the initial request. Whilst there is no evidence in this instance that the delay in initiating and finalising the approval process was a contributing factor to the final outcome, due to the limited medical facilities available to those in offshore processing locations, a delay in s47F may be the deciding factor in the final outcome of subsequent incidents that may occur. Based on the information provided, I make the following recommendations: • The s47F approval process is streamlined to enable s47F to arrange prompt medical care for injured parties. As noted earlier in this report, DIPB have indicated that it is continuing to review the circumstances surrounding the s47F as the s47F progresses and have advised that their intention is to wait for the completion of the s47F prior to developing corrective actions in response to this Inspector Report
DOCUMENTS OR THINGS THE INSPECTOR RECEIVED OR REVIEWED • Copy ofs47……… for services • Copy ofs47……… for services • Copies of email communication between DIBP ands47 • Copies of email Situation reports froms47 to DIBP • Copies of DIBP Situation Reports • Copies ofs47 Medical Records relating to injured • Copies ofs47 progress updates [Internal DIBP] • Copies ofs47 Incident Reports • Copies ofs47
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33 APPENDIX E: Comcare Inspector Report, Manus riot, 2014
INSPECTOR REPORT Work Health and Safety Act 2011 (Cth) (WHS Act) Australian Government Comcare Inspector's activity/objective: 1 commenced an intervention to conduct a compliance inspection. … Relevant date 18-Feb-2014 Reference no. EVE00224256-0001 Entry time Departure time [not recorded] SUMMARY OF COMMITMENTS/OUTCOMES Over the days of 16, 17 and 18 February 2014 there were a number of violent protests involving transferees at the Manus Island Offshore Processing Centre (MIOPC). As a result of these protests there were many injuries sustained mostly by transferees, some very serious. An Iranian transferee, Mr Reza Barati, suffered a head injury so severe that he died during the early hours of 18 February. The Department of Immigration and Border Protection (DIBP) notified Comcare of the incident on 18 February, and an inspection was commenced. Inspector Jason Briggs undertook a compliance inspection but no powers were exercised during the course of the inspection. Outcome After a thorough review of available evidence Inspector Briggs did not identify any breaches of the Workplace Relations Act 2011 (the WHS Act) by DIBP. On the evidence reviewed it appears DIBP provided a safe workplace as far as reasonably practicable. It is apparent that the injuries and death that occurred were the direct result of criminal actions, not as a result of inadequate WHS practices, processes or systems. Recommendations have been made further in this report. ACTUAL SITE ADDRESS OF ATTENDANCE OR WORKPLACE(S) INVOLVED … Name Manus Island Offshore Processing Centre Address Manus Island, Papua New Guinea I State I I Postcode I LEGAL NAME AND ADDRESS OF THE PERSON CONDUCTING BUSINESS OR UNDERTAKING (PCBU) Name Department of Immigration and Border Protection ABN 33380054835 Address PO Box 25, Belconnen ACT 2617 SUMMARY OF INSPECTOR'S ACTIONS AND OBSERVATIONS (Including any powers exercised, recommendations or directions made and compliance/s observed) Inspector Actions In response to DIBP's notification of the death of Mr Barati a compliance inspection was undertaken by Inspector Briggs. Early in the inspection DIBP indicated that they would cooperate with Comcare's request for information without the need for coercive notices. Prior to requesting information Inspector Briggs reviewed information obtained by Inspector Greg Zadro during his visit to MIOPC in December 2013. The first request for information was made to Ms Rita Haddad by email on 28 February. On 18 March DIBP responded to the request providing some of the requested material. The remaining material from the initial request was provided on 7 April. On 15 April DIBP Assistant Secretary Nick Evans provided information to Neil Quarmby, General Manager Comcare regarding some general questions on offshore processing facilities. After reviewing the material provided on 7 April , a further request for information was emailed to Ms Haddad on 16 April. The request was complied with on 13 May. A comprehensive review was undertaken of all the material provided by DIBP, along with the report of Mr Robert Cornall AO and the "Nauru Review 2013" by Mr Keith Hamburger AM. 34 Observations 1. DIBP's position is that the WHS Act applies in full in the context of MIOPC and that MIOPC satisfies the definition of "workplace" for the purposes of the WHS Act. 2. The contract for services between DIBP and G4S contained numerous clauses relating to safety, emergency and contingency plans and systems. The evidence supports the existence and implementation of these plans. 3. No DIBP workers were injured during the protests, most likely due to effective implementation of the Emergency Management Plan. 4. There was a large percentage of Papua New Guinea (PNG) workers engaged in MIOPC. This was a requirement of the contract for services. 5. DIBP appeared to have done what is reasonably practicable to provide a safe workplace at MIOPC. DIBP exhibited no control over the events that transpired between 16-18 February that led to the death of Mr Barati. … Recommendations 1. Consideration is given to implementing the recommendations from the Cornall Review, particularly recommendations 5, 6, 7, 8, 9, 11, and 13 which all have a direct or indirect relationship with workplace safety. 2. The same consideration is given to adapting recommendations 1, 3, 4, 7, and 10 from the Nauru Review 2013 as they apply to MIOPC. 3. Comcare inspectors undertake a further site visit to MIOPC prior to the end of 2014. DOCUMENTS OR THINGS THE INSPECTOR RECEIVED OR REVIEWED Memorandum of Understanding between the Government of the Independent State of Papua New Guinea and the Government of Australia, relating to the transfer to, and assessment and settlement in, Papua New Guinea of certain persons, and related issues Contract for the provision of services between the Department of Immigration and Citizenship (now the Department of Immigration and Border Protection) and G4S Australia Pty Ltd Numerous email responses from DIBP (received 18/3/14, 7/4/14 & 13/5/14) to questions asked by Inspector Briggs Correspondence from DIBP Assistant Secretary Nick Evans dated 11 April 2014 (received 15 April) Documents prepared by G4S including: • Emergency Management Plan • Contingency Plan • Safety and Security Management Plan • Security Awareness training • Emergency Orders Incident Response training • Emergency Awareness training (Bibby Progress) • Operational Order for the Training Evacuation of MIRPC • Operational Briefs (1 to 3) - Introduction to Evacuation • Training Evacuation Debriefs dated J1h and 27th December 2013 • Work Health and Safety Plan • Initial training course session plan and assessment • Defensive options practical assessment • Session plan and handout for staff induction • Learning and Development Management Plan G4S debrief document SitReps from 16 - 19 February 2014 15 x G4S Incident Reports Report of the review by Mr Robert Cornall AO "Nauru Review 2013" by Mr Keith Hamburger