The Department of Immigration and Border Protection is considering whether or not to return to offshore detention each of the 267 asylum seekers who are currently in Australia to receive medical (including psychiatric) treatment, or, in a few instances, to support a family member receiving treatment.

However, each “return or not return” decision is not a matter of discretion, it’s a matter of law — hence, as we shall see, the dilemma.

Specifically, the decision-making is governed by the criteria set out in the Work Health and Safety Act 2011. The WHS Act applies to all detention centres, because each one is a Commonwealth “workplace” as defined by section 8.

The act sets out two decision-making criteria: “health” and “safety”, which are particularly apt given the evidence of assaults at both Manus Island and Nauru (and one murder on Manus) and of sexual assaults at the Nauru centre, including 15 reported sexual assaults on minors between January 1, 2014, and June 30, 2015.

Three act provisions stipulate how risks to health and safety must be considered and prevented:

  • section 18 requires workplace operators to identify all significant risks of harm;
  • section 17 says those risks must then be eliminated, or, if that’s not reasonably practicable, at least minimised; and
  • section 19, headed “Primary duty of care”, imposes a duty on all workplace operators (such as the Commonwealth, via the department, at detention centres) to “ensure, so far as is reasonably practicable,” that both workers and “other persons” (asylum seekers) are not exposed to preventable workplace-related risks to their health and safety.

Applying firstly the criterion of “health”, including psychological health, the department would need to assess each individual’s vulnerability to health risks.

Medical research, led by the Australian Human Rights Commission on October 16-18 last year, and promptly reported to the department, found alarming evidence about the psychological vulnerability of children held at Darwin’s Wickham Point detention facility who might be sent to Nauru.

The children interviewed — most of whom had spent several months in Nauru — were among the most traumatised children the paediatricians have ever seen.

Secondly, as to “safety”, the department’s decision-making would need to take into account the serious risks of assaults at both centres and sexual assaults on Nauru.

Failure to comply with an act duty, including the section 19 duty of care, is a criminal offence, with heavy maximum penalties.

They range from a mere non-compliance fine of $500,000 for the Commonwealth (effectively, the department) and $100,000 for an officer, up to a “reckless” non-compliance fine of $3 million (department) and $600,000 and/or five years’ jail (officer).

Who might face officer penalties? Every “officer” (the secretary, plus anyone who makes or participates in decisions affecting the whole or most of the department) who fails to “exercise due diligence to ensure that [the department] complies with [every health and safety] duty”.

The department owes a section 19 duty of care to each individual asylum seeker, and it knows that:

  • sending asylum seekers from Australia to Manus or Nauru would expose them to serious safety risks;
  • prolonged detention is a serious risk to psychological health; and
  • Wickham Point children actually are — and all long-detained asylum seekers probably are — vulnerable to that risk (note that the average detention period is now 445 days, according to the department’s December 2015 statistical summary).

If the department sends them back to Nauru despite the obligations under section 17, the department would risk being charged with committing one “fail to comply with duty” offence per send-back decision, as might departmental officers who didn’t diligently try to ensure that the department complied with its section 19 duty.

Once charges were laid, not only would the parties charged be in potential trouble, but so would Australia’s international reputation. Having a draconian asylum seeker policy is one thing; implementing it by apparently criminal means is quite another.

The government’s own long record of not keeping detainees in Manus and Nauru safe has effectively made sending an asylum seeker to either centre nowadays a potential workplace-related crime.

*This article was originally published at The Mandarin

Peter Fray

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