Source document: https://docs-lawep.s3.us-east-2.amazonaws.com/1697633871662.pdf (Australia)
SUMMARY: submissions of (1) the Australian Lawyers Alliance; (2) Max Costello & Ms Paddy McCorry; (3) Max Costello NOTE: “PCBU” = a person conducting a (for-profit) business or (not-for-profit) undertaking, i.e., in simplistic terms, an employer Terms of Reference Issues canvassed/points made Issues canvassed/points made Issues canvassed/points made by submissions (1) and (2) and/or (3) only by submission (1) only by submissions (2) and/or (3) Notes or comments a. the factors that (1) Prolonged detention/residency in DIBP have contributed to the abuse and self-harm alleged to have occurred, facilities.
(2) Uncertainty, a feeling of ‘no future’.

(1) Comcare’s failure to take effective advice/compliance/enforcement action, thereby allowing the DIBP to apparently contravene – systemically and with im- punity – the Act’s pro-actively preventa- tive duty of care requirements, has con- tributed substantially to harm of various kinds.
(1) The targeting of whisteblowers, workers and advocates who’ve spoken out about refugee and asylum harm at RPCs is an approach that is effectively “perpetuating abuse, self-harm and neglect”.

(2) September 2014’s Ministerial announce- ments about the Cambodia resettlement option and the re-introduction of TPVs.

(3) In January 2015, incursion damage by locals, no running water, and a strike by unpaid local security guards.

(4) Impunity of individual offenders, e.g.


assaulters, sexual abusers, as shown by the almost total lack of prosecutions by Nauruan police in relation to alleged att- acks on asylum seekers (only one prose- cution, in late 2016).

(5) Perceptions of mistreatment in the RPC and of threats from the local population.
b. how notifications of abuse and self- harm are investi- gated, (1) Under Part 3––Incident notification of the Work Health and Safety Act 2011 (Cth) (“WHS Act”) (ss.35–38), the DIBP, as the PCBU of the RPCs (and all the on- shore facilities) has – and accepts that it has – an obligation to notify Comcare of all “notifiable incidents” (death, serious injury, serious illness, danger – s.35).
(2) However, because of two legislative restrictions – (a) the narrowly industrial elaborated definition (ss.36–7) of what consti- tutes a notifiable “incident”, plus (b) s.38’s requirement that, to be “notif- (1) The DIBP has failed to report all notifi- (1) Did Comcare fulfil its s.152 “advise and able incidents.

Incredibly, two Nauru RPC refugee self-immolations (April and May 2016) were not reported to Comcare.
APPENDIX 1 details 52 ‘Nauru files’ inci- dents for which Comcare seems to have not received a corresponding “notifiable incident” report from the DIBP.

(2) The DIBP has reportedly requested less damning wording in incident reports.

(3) The total number of notifications, which had been very high – 449 in 2013–14 (including 60 re attempted self-harm) and 643 in 2014–15 (including 140 re make recommendations to the Minister” function re “notifiable incident” glitches?

(2) Of the 449 incidents (incl.


8 deaths) that the DIBP notified to Comcare in 2013–14, 83% involved harm to asylum seekers (DIBP Annual Report, p.280).

(3) There’s a glaring discrepancy between the disproportionate rate of notifiable incident reports from ‘detention centres’ vis-à-vis the absence of any prosecutions and the tiny no.

of improvement (= com- pliance) notices issued (2 in 2015–16).
(4) The 2014 death of Hamid Khazaei (he 1 Serious allegations of abuse, self-harm and neglect of asylum seekers in relation to the Nauru Regional ProcessingCentre, and any like allegations in relation to the Manus Regional Processing CentreSubmission 48 - Supplementary Submission SUMMARY: submissions of (1) the Australian Lawyers Alliance; (2) Max Costello & Ms Paddy McCorry; (3) Max Costello NOTE: “PCBU” = a person conducting a (for-profit) business or (not-for-profit) undertaking, i.e., in simplistic terms, an employer Terms of Reference Issues canvassed/points made Issues canvassed/points made Issues canvassed/points made by submissions (1) and (2) and/or (3) only by submission (1) only by submissions (2) and/or (3) Notes or comments iable”, the incident must be one “aris- ing out of” the operation of the workplace – Comcare is not always notified of self- harm or attempted self-harm incidents, or of sexual abuse and assault incidents.
(3) No notification nearly always means no Comcare investigation.

(ALA’s APPENDIX 2 details 11 ‘Nauru files’ incidents that “should be investigated by Comcare”.)

(4) Even if notified of incidents, Comcare has not adequately investigated them.

(1) Since ‘detention centres’ are Common- wealth workplaces, the WHS Act applies.
(2) The Act imposes duties on workplace par- ties, mainly on PCBUs and their very top “officers”, but also to a lesser degree on “workers” – who must “take reasonable care that their acts or omissions do not adversely affect the health and safety of other persons”, and comply with their PCBU’s Act-related instructions.
(3) The main PCBU duty is the s.19 “primary duty of care” to safeguard “so far as is reasonably practicable” the health (in- cluding psychological health (s.4)) and safety of both “workers” – s.19(1) – and “other persons” – s.19(2).

(4) The “other persons”, at all the DIBP’s ‘detention centres’, are the residents, e.g., asylum seekers, a few refugees.
(5) Via ss.18 & 17, the s.19 duty is onerous, c. obligations of the Commonwealth Government and contractors relat- ing to the treat- ment of asylum seekers, including the provision of support, capability and capacity build- ing to local Nauru- an authorities, self-harm) – dropped dramatically to 144 in 2015–16 (only 10 re self-harm).

arrived brain dead in Brisbane after a 2- day medivac delay) was notified, but not soundly investigated.
The Comcare In- spector Report reveals that the inspector misinterpreted the offence section and did not seek vital documents.

Thus the “no apparent breaches of the legislation” conclusion is fundamentally flawed.

Why didn’t someone – anyone – higher up Comcare’s compliance and enforcement chain of command correct those extra- ordinary and obvious errors?
International Law (1) Division 274 of the Criminal Code Act 1995 (Cth) incorporates Australia’s ob- ligations under the Convention against Torture and Other Cruel, In human or Degrading Treatment or Punishment (“CAT”), signed and ratified by Australia.

(2) Evidence from numerous reliable sour- ces, including the UN Special Rappoteur on the CAT, catalogues the severe men- tal and often physical pain inflicted on RPC asylum seekers and refugees.
(3) Such mistreatment in breach of interna- tional obligations is intentional, and its stated aim of “removing the incentive for people smugglers to undertake danger- ous voyages in an attempt to reach Aus- tralian soil” amounts to “intimidating a … third person” [a potential asylum seeker], contrary to Article 1. pro-active and preventative: PCBUs must (4) Under the CAT, Australia cannot expel 2 Serious allegations of abuse, self-harm and neglect of asylum seekers in relation to the Nauru Regional ProcessingCentre, and any like allegations in relation to the Manus Regional Processing CentreSubmission 48 - Supplementary Submission SUMMARY: submissions of (1) the Australian Lawyers Alliance; (2) Max Costello & Ms Paddy McCorry; (3) Max Costello NOTE: “PCBU” = a person conducting a (for-profit) business or (not-for-profit) undertaking, i.e., in simplistic terms, an employer Terms of Reference Issues canvassed/points made Issues canvassed/points made Issues canvassed/points made by submissions (1) and (2) and/or (3) only by submission (1) only by submissions (2) and/or (3) Notes or comments identify all hazards, assess the associated risks (how likely to eventuate and if so, how harmful) then eliminate (or if that’s not “reasonably practicable”, minimise) each significant risk – unless the cost would be grossly disproportionate.
(6) Via s.12F(3), the Act has “extended geo- graphical jurisdiction” in countries such as Nauru and PNG with no equivalent law.

It thus applies at both RPCs: the Commonwealth can’t avoid its health and safety responsibilities by locating processing centres in other countries.

(7) Duty holders can’t transfer a duty (ss.14 and 272): any attempt to do so is “void”.

So, only the DIBP, not the government of Nauru or PNG, has an Act duty to ensure RPC residents’ health and safety.
Service provider companies are also PCBUs, but the DIBP is the over-all PCBU, and s.272 also says a duty holder (e.g.

the DIBP) can- not contract out its duties.

The DIBP thus retains its duties regardless of any contr- acts or MOU arrangements it enters into.

(8) CEOs and other senior “officers” have a duty (s.27) to ensure via due diligence – as prescriptively defined – that their PCBU always complies with every duty.

(9) Duty non-compliance is a criminal off- ence.


Under s.31, the DIBP potentially faces fines of up to $3m; while “officers” potentially face fines of up to $600,000 and/or 5 years’ jail.

people to countries where there are substantial grounds for believing they will be subjected to torture.

Domestic law (5) Obligations on the Commonwealth/its contractors stem from the WHS Act [see at left re residents of ‘detention centres’ including RPCs], the common law, and the Criminal Code Act 1995 (Cth).
(6) The WHS Act, at ss.104–107, prohibits discriminatory conduct (against work- ers and others) for prohibited reasons, including seeking compliance with the Act.

It is not known why Nauruan Police (accompanied by ABF staff), seized Save The Children’s computers or why STC’s contract was not renewed, but if related to STC workers revealing contraventions of the WHS Act, those actions appear to amount to discriminatory conduct.
(7) At common law, the Federal Court has held that the Commonwealth’s duty of care extends to all asylum seekers (in- cluding those later found to be refu- gees) that Australia took to PNG or Nauru, even if they don’t live in an RPC: SS99/2016 v Minister for Immigration and Border Protection [2016] FCA 483.
3 Serious allegations of abuse, self-harm and neglect of asylum seekers in relation to the Nauru Regional ProcessingCentre, and any like allegations in relation to the Manus Regional Processing CentreSubmission 48 - Supplementary Submission SUMMARY: submissions of (1) the Australian Lawyers Alliance; (2) Max Costello & Ms Paddy McCorry; (3) Max Costello NOTE: “PCBU” = a person conducting a (for-profit) business or (not-for-profit) undertaking, i.e., in simplistic terms, an employer Terms of Reference Issues canvassed/points made Issues canvassed/points made Issues canvassed/points made by submissions (1) and (2) and/or (3) only by submission (1) only by submissions (2) and/or (3) Notes or comments d. the provision of support … e. the role an ind- ependent child- ren's advocate … f. the effect of Part 6 of the Australian Border Force Act 2015, g. attempts by the Commonwealth Government to negotiate third country resettle- ment of asylum seekers and refu- This Term of Reference was not addressed.


(1) “The ALA supports the establishment of an independent children’s advocate for all children in immigration detention.” This Term of Reference was not addressed.

(1) In October 2016, the DIBP exempted (1) The prospect of a jail term has not diss- health professionals from these provis- ions, meaning they are no longer liable for prosecution, but the “restrictions re- main in place for others working in immi- gration detention facilities.
The question as to the constitutional validity of the law has not been resolved.” (2) The ALA endorses the 2016 statement of the UN Special Rapporteur on the situ- ation of human rights defenders.

It ex- pressed serious concerns about “the Act’s existence and government action aimed at censoring and intimidating ad- vocates … [from disclosing] information about [offshore processing] violations”.

(3) “The ALA believes that Part 6 of the ABF Act must be immediately repealed.
This secrecy can only allow abuse and self- harm to continue unchecked.” uaded hundreds of doctors and others – deeply concerned as health professionals for the health (including psychological health) and safety of RPC resident – from: (a) speaking out and/or demonstrating en masse; and/or (b) refusing to discharge patients from hospital because, if discharged, they will be returned to an RPC.
(2) Their above attitude, plus the content of submissions and evidence they’ve given to the AHRC, and to the Senate Select Committee on Nauru abuses, should en- able Comcare inspectors to readily obtain affidavits and expert statements to prove the health-related elements of alleged WHS Act offences.

(1) “The ALA believes that turning back asy- lum seekers boats is hampering efforts to come to a regional solution for refugees and asylum seekers.
It also puts Australia in direct conflict with its international obligations, including the obligation of non-refoulement and the obligation to (1) Given the Sept. 2016 warnings of experts Paris Aristotle (refugees) and Prof. Patrick McGorry (mental health) that ‘suicides of despair’ are increasingly likely on Nauru and Manus; and given that the DIBP knows serious psychological harm risks increase with the length of detention, 4 Serious allegations of abuse, self-harm and neglect of asylum seekers in relation to the Nauru Regional ProcessingCentre, and any like allegations in relation to the Manus Regional Processing CentreSubmission 48 - Supplementary Submission SUMMARY: submissions of (1) the Australian Lawyers Alliance; (2) Max Costello & Ms Paddy McCorry; (3) Max Costello NOTE: “PCBU” = a person conducting a (for-profit) business or (not-for-profit) undertaking, i.e., in simplistic terms, an employer Terms of Reference Issues canvassed/points made Issues canvassed/points made Issues canvassed/points made by submissions (1) and (2) and/or (3) only by submission (1) only by submissions (2) and/or (3) Notes or comments gees, allow people to seek asylum.” (2) “We are particularly concerned about recent proposals for a lifetime ban on people who have sought asylum in Aus- tralia by boat ever seeking a visa to come to Australia.
…” we say that if the Commonwealth/the DIBP does not promptly remove long- residence asylum seekers & refugees (in- cluding from onshore centres), then, in relation to each such individual, there is, according to s.31(1), a state of apparent “reckless” non-compliance with s.19(2).
31 Reckless conduct—Category 1 (1) A person commits a Category 1 offence [the most serious one] if: (a) the person has a health and safety duty; and (b) the person, without reason- able excuse, engages in con- duct that exposes an individ- ual 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.
Further, on the indicative evidence, the Commonwealth/the DIBP has apparently been committing this offence ongoingly, for several years – and with impunity.

h. additional meas- ures … i. any other related matters; This Term of Reference was not addressed.

This Term of Reference was not addressed.
(1) “[The government is] targeting whistle- blowers, advocates and workers who have spoken out about the harm that refugees and asylum seekers are suffer- ing in RPCs.” (2) Targets include Emeritus Professor Gillian (1) At some onshore ‘detention centres’, the media and Stagoll submission evidence suggests that the DIBP (which includes the ABF) is not just failing to protect resi- dents from preventable risks to their psy- chological health, but, via cruel practices 5 Serious allegations of abuse, self-harm and neglect of asylum seekers in relation to the Nauru Regional ProcessingCentre, and any like allegations in relation to the Manus Regional Processing CentreSubmission 48 - Supplementary Submission SUMMARY: submissions of (1) the Australian Lawyers Alliance; (2) Max Costello & Ms Paddy McCorry; (3) Max Costello NOTE: “PCBU” = a person conducting a (for-profit) business or (not-for-profit) undertaking, i.e., in simplistic terms, an employer Terms of Reference Issues canvassed/points made Issues canvassed/points made Issues canvassed/points made by submissions (1) and (2) and/or (3) only by submission (1) only by submissions (2) and/or (3) Notes or comments Triggs (President of the AHRC); Save The Children workers who were peremptorily removed from the Nauru RPC and depor- ted; and Dr Peter Young (who headed up International Health and Medical Services in relation to its ‘detention centre’ con- tract 2011–2014).
(3) Others who want to speak out can fear similar treatment.

“Such a fear means that risk factors relating to abuse, self- harm and neglect are not exposed and the risks persist unnecessarily, often in contravention [of] legal obligations.” and restrictions, creating such risks.

(2) Unlike the vast majority of workplaces, ‘detention centres’ (including RPCs) can have “other persons” on site all the time (24/7, 365 days a year), for years.
That makes the s.19(2) “other persons” duty demanding on both PCBUs and workers.

The same applies to most other ‘custody or care’ accommodation workplaces, e.g., places that house ‘wards of the State’ or that care for people with severe disabilit- ies; NT youth detention facilities; and many places across the nation (including boarding schools) that the Royal Commi- ssion into institutional responses to child sexual abuse has examined and exposed.
(3) Additionally, nearly all such ‘custody or care’ accommodation workplaces except boarding schools house “other persons” whose characteristics are not those of a typical cross-section of society: they can therefore be difficult – in some facilities dangerous – for workers to manage.

(4) As a result of factors (2) and (3) above, PCBUs of ‘custody/care’ accommodation workplaces – and their officers and work- ers – need much support & guidance.
But the websites of the regulators across all Australian jurisdictions provide none.

So, to help all the duty holders in such work- places to comply with their “other per- sons” duties under the WHS Act, a Code of Practice is urgently needed.
The COAG process is slow, so Safe Work Australia 6 Serious allegations of abuse, self-harm and neglect of asylum seekers in relation to the Nauru Regional ProcessingCentre, and any like allegations in relation to the Manus Regional Processing CentreSubmission 48 - Supplementary Submission SUMMARY: submissions of (1) the Australian Lawyers Alliance; (2) Max Costello & Ms Paddy McCorry; (3) Max Costello NOTE: “PCBU” = a person conducting a (for-profit) business or (not-for-profit) undertaking, i.e., in simplistic terms, an employer Terms of Reference Issues canvassed/points made Issues canvassed/points made Issues canvassed/points made by submissions (1) and (2) and/or (3) only by submission (1) only by submissions (2) and/or (3) Notes or comments should be providing an interim guide.
The above summary of submissions is approved by the submitters concerned: Anna Talbot of the ALA, Max Costello and Ms Paddy McCorry.

15/11/2016.

7 Serious allegations of abuse, self-harm and neglect of asylum seekers in relation to the Nauru Regional ProcessingCentre, and any like allegations in relation to the Manus Regional Processing CentreSubmission 48 - Supplementary Submission