Moss Review finds urgent need to protect asylum seekers on Nauru

NEWS FROM THE REFUGEE COUNCIL  (from their monthly bulletin):

 

The review conducted by Philip Moss into the allegations relating to sexual and physical abuse of both children and adults at the Offshore Processing Centre in Nauru revealed a disturbing lack of protection for asylum seekers held in detention there. It uncovered multiple allegations of physical and sexual assault against asylum seekers (including children); noted that many asylum seekers detained on in Nauru were concerned about their personal safety and privacy; and found that there is underreporting of assaults against asylum seekers due to “family or cultural reasons”, fears that reporting assaults could negatively affect asylum claims or loss of confidence that anything would be done about their complaints. The Review also found that there was no evidence to substantiate the allegations of misconduct against the 10 Save the Children staff members who were removed from Nauru last year. In a statement, RCOA called on the Australian Government to act urgently to identify the relevant authorities and support the immediate and thorough investigation of sexual abuse and physical assault allegations on Nauru. RCOA President Phil Glendenning said that “it is not good enough for the Government to have one set of rules for how Australian institutions respond to child sexual abuse here and another set of rules for Australian-funded institutions on Nauru. A child is a child, and they deserve our greatest protection and care.” Read the full statement at http://www.refugeecouncil.org.au/?p=3220

Asylum seeker mistreatment – the criminal law perspective, by Max Costello

I do not normally post other people’s writing on my blog.  But this is important, and Max Costello agreed to let me publish this here. It’s worth reading:

Asylum seeker mistreatment – the criminal law perspective by Max Costello*

The Australian Human Rights Commission’s November 2014 Forgotten Children report, about Australia’s mistreatment of asylum seeker children in detention, exposed the international human rights law and “duty of care” breaches involved. The report’s focus was on breaches of civil law – that people can be sued for.

But, as this article explains, mistreatment of asylum seeker children (and adults) also involves the apparent commission of criminal law offences – that people can be prosecuted for – under Australia’s Work Health and Safety Act 2011 (Cth) (“the WHS Act” or “the Act”).

The Act’s definition of a Commonwealth “workplace” (section 8) applies to each detention centre, offshore or onshore. Section 19 imposes a duty on all workplace operators to “ensure, so far as is reasonably practicable,” that not only “workers” (s.19(1)) but also “other persons” (s.19(2)) are not exposed to risks to their health and safety. At detention centres, those “other persons” are asylum seekers and their children. Section 4 defines “health” to include “psychological health”.

Comcare is the regulator that must ensure compliance with Act, including the s.19(2) duty. Non-compliance is a criminal offence, prosecutable by Comcare – with fines up to $3 million and jail for up to 5 years (sections 31–33). The Minster for Employment, Senator Eric Abetz, has responsibility for the Act and Comcare.

The systemic criminality of detention centre operation – that is, the ongoing failure to take practicable, effective risk-prevention measures to protect “other persons” – is almost self-evident from the following:

• The AHRC’s Forgotten Children report found that:–

(a) by March 2014, the children’s average time in detention was 231 days (p.20); and

(b) the longer the detention, the more harm to psychological health (pp.177, 211).

• There were 49 reported sexual assaults involving detention centre children during the two years ending 31 January 2015 – that’s almost one per fortnight. (Department of Immigration and Border Protection evidence, Senate Estimates Committee hearing, 23 February 2015: The Age, 24/2/2015.)

• The 2013–14 Annual Report of the Department of Immigration and Border Protection (“the Department”) states at p.280 that 449 incidents of danger, serious illness/injury or (in 8 cases) death occurred at the Department’s workplaces Australia-wide – and, as required by the Act, Comcare was notified of all of them. Further, 374 of them (83 per cent) occurred at detention centres, but “did not directly involve workers”. In other words, they all did directly involve “other persons” – asylum seekers and their children.

• Who operates detention centres? The Commonwealth of Australia, via the Department. What sanctions has the Commonwealth faced? None.

According to Comcare’s 2012–13 Annual Report (at pp.182–3), seven detention centres were inspected but no breaches of the WHS Act were found, and so inspectors commenced no prosecutions. The 2013–14 Report likewise records (at pp.180–1) no detention centre prosecutions.

Contractors engaged by the Department provide most of the services at detention centres – but read the following sections of the Act.

10 Act binds the Commonwealth
(1) This Act binds the Commonwealth.
(2) The Commonwealth is liable for an offence against this Act.
14 Duties not transferrable
A duty cannot be transferred to another person.
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.

So much for the Act, and the Commonwealth’s record of systemic – and so far unpunished – criminality. Is anything changing? The most recent developments, with explanatory comments, are as follow:

• Reportedly (The Age, 21/2/2015), Philip Moss, former Commonwealth Commissioner for Law Enforcement Integrity, provided to the Department on 9 February 2015 his report on certain allegations of sexual and other assaults at Nauru in 2014.

Does the Moss report recommend that Comcare be required to do its detention centre job properly – and, if so, will the government follow through? Who knows? The report hasn’t been released, and the Department’s Minister, Peter Dutton, told the ABC’s Fran Kelly on 25 February 2015 that he hadn’t yet received it.

• According to The Age (26/2/2015) the Department referred allegations of assault, at Melbourne’s Maribyrnong detention centre, to police (but not Comcare); while the Commonwealth Ombudsman is investigating another case.

With assaults, a potentially relevant WHS Act offence is non-compliance with the duty, under section 19(3)(f), to make sure workers are given all necessary information, training, instruction and supervision, so as to ensure that the health and safety of “all persons” at a workplace is protected. So, did the Commonwealth at Maribyrnong fail to ensure effective supervision, and, if so, will either body charge the Commonwealth with a ‘breach of s.19(3)(f)’ offence? No: police won’t – they focus on individuals, not governments – and the Ombudsman can’t.

• According to the Guardian Australia (4/3/2015), “Child protection whistleblowers who alerted the AHRC to child sexual abuse, violence and self-harm on Nauru are being investigated by the Australian federal police. … [T]he AFP has been asked by the Department … to investigate … a suspected breach of section 70 of the Crimes Act, concerning ‘disclosure of information by commonwealth officers’ … ”.

How malevolent! While the current Royal Commission into Institutional Responses to Child Sexual Abuse treats whistleblowers with respect, the Department treats good people, who blow the whistle on the Commonwealth’s own lamentable institutional responses on Nauru, as if they (the whistleblowers) are the criminals.

In summary, in relation to asylum seekers and their children in detention centres, the Commonwealth government, led by Prime Minister Tony Abbott, is at best going soft on – and at worst pro-actively protecting – its own ‘organised crime’ regime. The government should be ashamed of itself.

_______________

* Max Costello LLM is a former Victorian WorkCover Authority prosecutions solicitor and a former sessional lecturer in Employment Law at Melbourne’s RMIT University.

A letter from an Australian family who visited detention

This letter was written after visiting an Iranian man in immigration detention.  The writer has given permission for me to put it on this site.  Identifying details have been masked:

“To Mr Peter Dutton and Ms Sarah Henderson,

Today my husband and I visited [AB] at [XYZ] Detention Centre. He had been moved from Manus Island just before Christmas after seeing a Melbourne neurological specialist there. The specialist said he needed to be moved to Melbourne to receive medical treatment.

[AB] is Iranian and was caught in the Feb 7th rampage where his best friend Reza was murdered. Another of his friends lost his eye, another was shot and still has a bullet in his back. [AB] himself was attacked by guards and local people. He was beaten around the head with a rod, lost several teeth and suffered acquired brain injury to the extent that he cannot remember anything about his life prior to this terrible day. He still has nightmares every night. He cannot walk properly and has poor balance and regularly falls over. His friends tell him about what happened at Manus before and on that day, and his brother in Iran tells him about his life back in Iran before he came to Manus. This is very distressing for him. He has had these problems for almost 12 months, and spent several weeks in Port Moresby Hospital after his head and face were wounded, but on Manus had NO medical treatment to speak of. And your government says Manus Island detainees are receiving all the attention they need!!!@@#$%^&?????

[AB]’s other 2 friends have been brought to the mainland for medical treatment also but all sent to different states, one in Sydney and the other in Adelaide if I remember correctly. So he cannot see them and talk to them about their plight, or to console each other.

The conditions on Manus are in his words very bad, even as compared with Maribyrnong in every way. In the intense heat there they had no air conditioning, the food, the guards, the cramped conditions where they slept, and the very low morale of all the people there. Have either of you, Sarah or Peter, been to Manus Island to see for yourself how you would like to live in these conditions for a day or a week, much less with all the emotional baggage these men have to carry with them as well. [AB] says his physical condition is not as bad his brain injury which he finds really disturbing. He cannot concentrate and sometimes cannot think of the words he wants to say. His friends tell him his English was very good before the attack, but not so now.

Any organisation that treated the people they were responsible for looking after, in this manner would be sued for negligence and lack of duty of care. I believe that the Australian government has a lot to answer for and I urge you to immediately organise an independent inquiry into conditions on Manus Island, and the medical treatment available. A major Crisis is about to happen or should I say is NOW happening, and there is not the infrastructure and medical facilities to cope even when there is not a crisis as in [AB]’s case.

We stayed and talked to [AB] for 2-3 hours. He is a very gentle and good living man, with wonderful simple values to love and care for your family and friends. He was so appreciative of our visit and didn’t want anything from us although we took him some food treats which hopefully he will be able to pick up from security tonight. He will not pronounce himself to belong to any religious body and this is a real problem for him in Iran. If you do not pronounce to be Muslim you will be shot.

It is obvious that the prolonged periods of detention, characterised by frustration, uncertainty and insecurity, are doing further damage to individuals who have fled grave human rights abuses. These people are easily tipped over the edge. You could feel it in the air in some of them today in the Visitors Centre. The detention policy has failed as a deterrent and succeeded only as punishment.
How much longer will these people be punished for seeking safety from persecution?

I urge you to think seriously about our government’s Immigration policy and act in a humane, compassionate and responsible manner. Asylum seekers are a global problem and we need to do our share. Spend some of the billions of dollars on restoring these people’s hope rather than destroying it.

Sincerely, [name and address withheld]”