Workplace law offers possible redress for immigration detainees

Max Costello argues that OHS law could extend to immigration detention centres, schools and orphanages where children and others are abused ... Inquiries should explore the application of workplace law ... Legislation binds the Commonwealth 

NONE of the major inquiries into child abuse and mistreatment adopts the 'W' word – "workplace". 

Yet, that's where nearly all the alleged mistreatment and/or sexual abuse of children occurs. A school, an orphanage, a day care centre, an immigration detention centre, a residential care facility - each one is a workplace.

The Australian Human Rights Commission's Forgotten Children report of November 2014, on the harmful health effects of prolonged detention on asylum seeker children, uses the word "workplace" only once.  

As does the February 2015 Moss Report into alleged physical and sexual abuse at the Nauru detention centre in 2014.  

The word is absent from, or at least not highlighted in, the interim reports from the Royal Commission into Institutional Responses to Child Sexual Abuse, although the final recommendations might well fill that gap.

Not making use of the 'W' word as a noun is a missed opportunity because, as Paul Keating might say, it amounts to not "grasping a lever of change".

That lever is occupational health and safety law, with its onerous duty of care obligations on operators of workplaces and its prospect of criminal convictions and million dollar penalties for operators who fail to comply.

As the word "institutional" in the Royal Commission's title indicates, the focus of commission recommendations will not be on individual abusers, but on embedding a caring culture in institutions responsible for children - nearly all of which operate workplaces in which children live, or attend.

The outward behavioural elements of such a culture are already stipulated in OHS legislation, and have been for decades. If an organisation operating a "children present" workplace fails to pro-actively put in place practicable measures to eliminate (or at least minimise) such well-known risks as sexual abuse, assault, injury, or harm to physical or psychological health, the organisation is committing a criminal offence under OHS law.

Accordingly, the Forgotten Children report and the Moss Report could well have pointed out that detention centres are workplaces, and that their operator, the Commonwealth of Australia and its contracted service providers, by apparently failing to pro-actively put in place such measures, were potentially committing breaches of the Work Health and Safety Act 2011 (Cth), and should therefore be investigated by the Act's regulator, Comcare.  

The Human Rights Commission's focus was, naturally, on human rights law, so understandably workplace law was not in the picture. 

But Mr Moss knew that the Act applied to the Nauru centre's operation and that the Commonwealth was apparently breaching it - because I co-wrote a submission telling him so. 

As we told Moss, while the primary focus of the Act is on protecting "workers" from workplace-related risks to their safety and health, notably via section 19(1), the Act's protection extends, by the duty imposed in section 19(2), to "other persons" who are at a workplace or might be adversely affected by its operation. 

At a detention centre, those "other persons" are of course asylum seekers and their children, who live there 24/7 for years and months and in certain circumstances, indefinitely. 

As our submission pointed out to Mr Moss, the following provisions show how explicitly and comprehensively the Act applies to the Commonwealth.

10   Act binds the Commonwealth

1. (1) This Act binds the Commonwealth.
2. (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 …) applies to 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 … any duty owed under this Act is void.

By means of sections 10 and 12F(3) the Act's criminal offence provisions apply to the Commonwealth, both within Australia and overseas; while sections 14 and 272 close off any attempt by the Commonwealth to avoid its duties by "offshoring" them to Nauru and PNG, or "outsourcing" them to contractors. 

If found guilty of failing to comply, the Commonwealth could be fined up to $3 million. A Commonwealth officer could be fined up to $600,000 and/or jailed for up to five years. 

Surely the Commonwealth government and its officers wouldn't implement asylum seeker policy by means of an ongoing sequence of criminal offences?

* Max Costello LLM is a former prosecuting solicitor with the Victorian WorkCover Authority (WorkSafe)