Imagine if somewhere in Australia the wreckers moved in to demolish a building, turned off the power and water and removed the furniture while people were still living there. Rightly, there would be calls for the government to stop this inhumanity. There would be calls for an investigation and prosecution of those responsible for the demolition by the workplace regulator.
This is exactly what is happening on Manus Island, where the dismantling and demolition of the Australian and Papua New Guinea government-run immigration detention centre is taking place, following the PNG government’s May announcement that the centre would be closed by October this year. Detainees are without water, power, bedding or, importantly, any form of protection from harm by members of the local community. Yet the Commonwealth government workplace regulator, Comcare, is nowhere to be seen or heard.
Comcare has a responsibility under the 2011 Work Health and Safety Act to ensure that Commonwealth government workplaces, and this includes offshore sites such as Manus Island and Nauru, comply with a duty to ensure that anyone who is in the workplace is safe.
Under this act, there is duty owed by those who run the workplace to 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”. Importantly, under the act, the Commonwealth is liable for ensuring a safe workplace even if it has contracted out the management and day-to-day running of the workplace. So this means that the Commonwealth could not blame the contractors carrying out the demolition for breaching the duty owed under the act for the safety of detainees.
There are a range of charges that Comcare can bring against individuals or government departments that breach safety duties.
The circumstances of the demolition and dismantling of the Manus Island detention centre are such that it is fairly obvious the Department of Immigration and Border Protection is breaching the duty it owes under the Work Health and Safety Act to detainees. To carry out demolition and dismantling works while persons are still present on the site, including removing access to power, water, bedding and forms of physical security, is a case where it could be said that the Department is failing to provide and maintain “a work environment without risks to health and safety” as it is required to do under the act.
Given these circumstances, one would have thought Comcare would be looking at sending investigators to the Manus site, compiling a brief of evidence and contemplating charging the Department of Immigration under the act for this breach of duty.
There is potential for a charge to be laid that accuses the department of recklessly engaging in, “without a reasonable excuse”, what is called “conduct that exposes an individual to whom that duty is owed to a risk of death or serious injury or illness”. That offence carries a maximum penalty of $3 million. To insist on proceeding with a demolition and dismantling of the detention centre without caring about how to secure the safety of the detainees would seem to be a case of seriousness recklessness on the part of the Department of Immigration.
But not only could Comcare lay charges against the Department of Immigration, it has the power to halt the current demolition and dismantling activity if it thinks that the work being carried out at the workplace is exposing people to injury. It can do this by serving what is called an “improvement notice” or a “prohibition notice” and, if the Department of Immigration refused to comply with a notice, Comcare can seek an injunction to force compliance.
In short, Comcare is a workplace regulator with serious teeth. It could, if wanted to, stop what is happening at Manus Island within hours. And it could, again if it wanted to, begin an investigation into the conduct of the Department of Immigration with a view to laying a reckless conduct charge.
But so far Comcare has been silent, and it is hard to fathom why, given that what is happening at Manus is being graphically described by detainees and advocates on a daily basis. Perhaps Comcare’s CEO Jennifer Taylor might like to explain why her officers are not hot-footing it to Manus to ensure the safety of vulnerable detainees in what is arguably the most dangerous of Commonwealth workplaces.
*Greg Barns is a barrister and a spokesman for the Australian Lawyers Alliance