Obligations of the Commonwealth Government, and contractors, towards asylum
seekers and refugees
The committee considered a significant amount of evidence about the
adequacy of services made available to refugees and asylum seekers in the
Republic of Nauru (Nauru) and Papua New Guinea (PNG), and addressed the work
undertaken by the Australian Government to build capacity with local
authorities. However, few submitters provided detailed information about the
legal obligations which the Commonwealth Government (and its contractors) may owe
to asylum seekers and refugees in Nauru and PNG. This may be because previous
inquiries into matters associated with Australia's Regional Processing Centres
(RPCs) have made a number of findings in relation to the obligations of the
This Chapter will:
summarise the evidence put to previous Senate inquiries about
Australia's obligations to refugees and asylum seekers in Australia's RPCs,
pursuant to international and domestic law;
summarise the findings of those inquiries;
set out the evidence provided by the Department of Immigration
and Border Protection (the department) to this inquiry in relation to the duty
of care owed to those asylum seekers and refugees;
outline recent developments and alternative perspectives about
Australia's obligations in these matters; and
discuss the obligations of the department, and its contractors,
pursuant to the operation of the Work Health and Safety Act 2011.
Evidence put to previous inquiries
Obligations of the Commonwealth
pursuant to international law
In December 2014, this committee found that Australia has a range of
general and specific human rights obligations which relate to the treatment of
asylum seekers and refugees.
Broadly, these considerations include:
obligations pursuant to the Refugee Convention, noting the right
to seek asylum and a right not to be punished for any illegal entry into
territory in order to seek asylum under article 31;
the obligation to not return (refoule) any person to a country
where there is a risk that they would face persecution, torture or other
serious forms of harm,
noting that non-refoulement obligations are absolute and cannot be subject to
the prohibition of torture, including cruel, inhuman or degrading
treatment or punishment,
noting that prolonged indefinite detention has been found to breach this
the prohibition of arbitrary detention;
the right to security of the person,
requiring Australia to take steps to protect people against interference with
personal integrity by others (including protecting people who have been
threatened with death, harassed or intimidated);
the right to life, and a duty to investigate all deaths where the
state is involved;
the right of every person to the enjoyment of the highest
attainable standard of physical and mental health, and the requirement that
steps be taken to help achieve this to the fullest possible realisation;
the obligation on states to ensure access to an effective remedy
for the violation of human rights, and the requirement to make repatriation to
individuals whose rights have been violated.
The committee stated that Australia owes human rights obligations to
persons outside Australia over whom Australia exercises 'effective control', or
who are otherwise under Australia's jurisdiction.
The committee also noted that, aside from exercising 'effective control',
Australia could also have 'joint or concurrent responsibility' with another
state 'in relation to conduct that occurs on the latter's territory'.
It stated that, in relation to Australia's non-refoulement obligations:
[W]hile this obligation is not extraterritorial, it may
involve conduct that becomes extraterritorial in the course of the transfer.
For instance, if a person is present in Australian territory and then is
removed from Australian territory by Australian authorities and transferred to
a third state. The conduct that occurs outside of Australian territory is the
extraterritorial element. The non-refoulement obligation requires Australia not
to send a person who is in Australia to a country where there is a real risk
that the person would face persecution...
The committee noted that departmental officers, and human rights
organisations and academics strongly disagreed as to whether or not Australia
retained 'effective control' over the RPCs.
The Office of the UN High Commissioner on Human Rights (UNHCR) submitted that
the physical transfer of asylum seekers from Australia to PNG did not
extinguish Australia's legal responsibility to protect them.
Mr Daniel Webb, Director of Advocacy at the Human Rights Law Centre (HRLC), argued
that 'It would defeat significantly the purpose of international human rights
law if states could just do offshore things that it could not legally do
He submitted that Australia was not simply a link in the causal chain enabling
human rights abuses to occur, but that it actively built the chain itself.
Obligations pursuant to domestic
The committee also heard that the Commonwealth Government owed a
non-delegable duty of care under common law to ensure the safety of asylum
seekers detained at the Manus RPC.
The department provided a limited response to this matter, noting that the question
was complex and was the subject of ongoing litigation.
The findings of previous committees in relation to Australia's obligations
In December 2014, the committee concluded that:
...the degree of involvement by the Australian Government in
the establishment, use, operation and provision of total funding for the centre
clearly satisfies the test of effective control in international law, and the
government's ongoing refusal to concede this point displays a denial of
Australia's international obligations.
It found that, as the 'architect' of the offshore processing arrangement
with PNG, the Australian Government had a 'clear and compelling moral
obligation' to ensure that asylum seekers held on Manus Island were treated in
accordance with principles and minimum standards according to international
Additionally, the committee found that Australia did owe duty of care
responsibilities under Australian law, and urged the Commonwealth to 'urgently
address any potential breaches of this duty of care'.
The Select Committee on Recent allegations relating to conditions and
circumstances at the Regional Processing Centre in Nauru (select committee),
likewise concluded in August 2015, that:
Australia held obligations under both international and domestic
law, as well as responsibilities pursuant to the relevant Memorandum of
Understanding (MOU) between Australia and Nauru, in relation to the care of
asylum seekers at the Nauru RPC;
there is a strong argument that the primary obligation to protect
the human rights of asylum seekers in Nauru rests with Australia and, at a
minimum, Australia holds joint obligations with the Government of Nauru in this
the Australian Government needed to 'intensify its efforts to
achieve a genuine regional framework for irregular migration and processing of
The select committee found that:
The Government of Australia's purported reliance on the
sovereign and legal system on Nauru in the face of allegations of human rights
abuses and serious crimes at the RPC is a cynical and unjustifiable attempt to
avoid accountability for a situation created by this country.
The committee also commented on the apparent lack of oversight of RPC
contractors, and a disconnect between what the department was aware of on one
hand, and what the contractors were aware of on the other, including in the
case of extremely important video footage of a riot in the RPC.
It found that the Nauru RPC was 'not run well, nor [were] Wilson Security and
Transfield Services properly accountable to the Commonwealth despite the
significant investment in their services'.
Statements made by the department in relation to a duty of care
The department presented arguments to this committee about Australia's
obligations pursuant to international law, Australia's obligations pursuant to
domestic law, and when and how Australia may owe a duty of care in relation to
refugees and asylum seekers in Nauru and PNG.
Obligations pursuant to
In relation to Australia's obligations under international law, the
department noted that Australia is a party to a number of international
It submitted that 'Under those treaties, Australia has certain obligations to
all persons within its jurisdiction',
and argued that 'Australia's international obligations apply only to those who
are within its jurisdiction'.
The department advised that a key relevant obligation pursuant to
international law is non-refoulement, or the requirement to not send a person
back to a country where they would be a real risk of persecution of other types
of harm (such as the death penalty or torture). The department argued that
Australia is protected from any breach of its non-refoulement obligations in
two ways: first by virtue of the MOUs signed with the Governments of Nauru and
PNG, and second by the conduct of 'pre-transfer assessments' to
all persons liable to be transferred to an RPC.
The department submitted that, by virtue of the 'assurances' contained
within the MOUs between Australia and the Governments of Nauru and PNG,
Australia is protected from any breach of its non-refoulement obligation
because they limit the risk that a regional processing country will itself
refoule an asylum seeker.
It explained that these MOUs contain assurances that asylum seekers will:
be treated with dignity;
not be expelled or returned to another country where their life
or freedom would be threatened;
be provided with a Refugee Status Determination (RSD) assessment;
not be sent to another country where there is a real risk of
being subjected to torture, cruel, inhuman, or degrading treatment or
punishment, arbitrary deprivation of life or the imposition of the death
The department explained that its 'pre-transfer assessments' ensure that
Australia does not breach its non-refoulement obligations because they consider
whether 'appropriate support and services' are available in a regional
processing country, and confirm there is no barrier to the transfer occurring
(for example, the absence of non-refoulement obligations).
The department also highlighted that Nauru and PNG are party to a number
of international treaties, including the Refugee Convention, and Convention on
the Rights of the Child (CRC). It noted that PNG is a party to the ICCPR, which
Nauru has signed but is yet to ratify, and that Nauru is a party to the CAT.
In relation to the allegations by some submitters that the detention of
asylum seekers in Nauru and PNG constitutes torture pursuant to international
the department stated that this did not constitute torture.
Obligations pursuant to domestic
The department submitted to the committee that it has a duty of care to
asylum seekers and refugees, but only within a 'tightly defined activity'
pursuant to a contract to provide services to those refugees and asylum
...within a larger framework of responsibility in which we are
not legally, jurisdictionally responsible, there are a number of specified
activities, which are enumerated in intergovernmental agreements and contracts,
whereby the Commonwealth delivers services principally through its contractors.
The department used the example of the provision of food to refugees and
If the Commonwealth contracts anywhere for the provision of
food to people, and that food makes them crook, in relation to that activity,
pursuant to that undertaking, you have got a reasonably practicable duty to do
everything within your directly contracted powers...
If the contract says we will provide garrison services and
within garrison services we will provide a meal service then we cannot walk
away and say, 'Well, bugger the quality of the food; if it poisons people, so
be it.' We have a duty of care in relation to that very tightly defined
The department submitted that while it has a primary duty of care in
relation to delivering food to people, this does not constitute 'running the
The department characterised its duty of care as one which related to a 'very
tightly defined scope of activities', which required the department to conduct
themselves in a 'diligent, safe and...statutorily defensible manner'.
The committee asked the department what the duty of care owed by the
Governments of Nauru and PNG towards refugees and asylum seekers required them
to do, and what the relevant standard of care would be. The committee also
asked how those governments would discharge such a duty of care when they do
not have legal control over the services and amenities provided to RPC
occupants (including food, water, clothing, shelter, medical services, and
security services). The department responded that the 'nature or scope of a
duty of care in this context is a complex legal question involving
consideration of foreign laws', and submitted that this would normally entail
The department argued that it provides support and assistance to the
Governments of Nauru and PNG, and that this assistance 'does not detract from
or limit the ultimate control exercised by relevant authorities in these countries'
in relation to RPCs.
Current claims against the Commonwealth
As stated above, the department submitted that it would only owe a duty
of care to asylum seekers and refugees in Nauru and PNG in relation to tightly
defined and discrete activities associated with the operation of the RPCs, and argued
that Australia continues to meet its obligations pursuant to international law.
However, the committee noted that there are a number of claims which
argue that this is not the case. A class action is currently on foot in
relation to the Manus RPC, and several submissions have been made to the
Prosecutor for the International Criminal Court (ICC) arguing that the
Australian Government has engaged in crimes against humanity through the
operation of its RPCs.
Class action in relation to the
In December 2014, Mr Majid Karami Kamasaee brought a class action
against the Commonwealth of Australia, G4S Australia Pty Ltd and Broadspectrum
(Australia) Pty Ltd in the Supreme Court of Victoria.
The claim in this matter is negligence, pursuant to tort law.
The first statement of claim, filed in December 2014, alleged that the
three defendants were negligent in the provision of food, water, accommodation,
health care services, and security to persons held there between 21 November
2012 and 19 December 2014.
On 1 August 2016 an amended statement of claim was filed, including an
additional allegation that the defendants had falsely imprisoned detainees at
the Manus RPC between 21 November 2012 and 12 May 2016.
The amended statement of claim submits that in the period during which
G4S was contracted to provide services at the Manus RPC, and later when
Transfield Services (later known as Broadspectrum) was contracted to provide
- the Commonwealth of Australia was in control of the Manus RPC;
- the Commonwealth of Australia, directly and through its agents and contractors,
owed a non-delegable duty;
this duty of care required it to take reasonable care to avoid
foreseeable harm to detainees at the Manus RPC;
those foreseeable risks of harm arose from prolonged detention in
difficult conditions, delayed remediation work, and a reliance on the local PNG
police for international security;
the Commonwealth of Australia breached that duty of care in relation to
the provision of food and water, shelter and accommodation, health care
treatment, internal security, and external security;
there was a causal connection between that failure, and harm which the
The plaintiffs claim both exemplary and aggravated damages in relation
to this alleged negligence.
Exemplary damages are a class of damages which focus on the conduct of a
defendant rather than the loss of a plaintiff, and are intended to punish the
defendant and deter similar future conduct.
Aggravated damages may be awarded 'when the harm done to [a plaintiff] by a
wrongful act was aggravated by the manner in which the act was done'.
An application in relation to this matter was heard before Justice
McDonald of the Supreme Court of Victoria on Wednesday 22 March 2017.
At the date of this report, this matter is ongoing.
Submissions to the International
Several submissions have been made to the Office of the Prosecutor of
the ICC requesting that Australia be investigated for crimes under
The ICC is a permanent institution which exists to complement national
The Rome Statute of the International Court 1951 (the Rome
Statute), which establishes the ICC, provides that a case will be inadmissible
before the court if it is being investigated or prosecuted by a State with
jurisdiction over the case, unless the State is 'unwilling or unable genuinely
to carry out the investigation or prosecution'.
Submission from Mr Andrew Wilkie MP
On 23 January 2015, Mr Andrew Wilkie MP wrote to the ICC requesting that
Australia be prosecuted for crimes against humanity pursuant to the Rome
Statute, the Refugee Convention, the ICCPR, and the CRC.
Mr Wilkie highlighted the following issues in relation to RPC operation:
deprivation of liberty in extreme physical conditions, including
indefinite detention and the separation of families;
the forcible transfer of asylum seekers to foreign detention
intentional acts causing great suffering and serious injury by
means of inhuman conditions in detention;
Submission from Mr Julian Burnside
On 11 November 2016 a consortium of international lawyers, including Mr
Julian Burnside AO QC, also requested that the Prosecutor of the ICC take
action against Australia in relation to crimes against humanity.
The consortium submitted to the Prosecutor that they had provided sufficient
evidence to warrant a preliminary investigation, and that the ICC was
well-placed to investigate this matter because, as the Prosecutor of the ICC
Where national systems remain inactive or are otherwise
unwilling or unable to genuinely investigate and prosecute, the ICC must fill
the gap left by the failure of States to satisfy their duty.
The consortium argued that successive Australian Governments had
contravened the Rome Statute by instituting a system of indefinite mandatory
offshore detention, and the forcible removal of asylum seekers to Nauru and
In addition, the consortium posited that international case law supports
the argument that Australia has control of the RPCs.
They argued that the Commonwealth has 'effective control' of the RPCs because
the relevant conduct would have not occurred 'but for' Australia's involvement.
They also argued that the circumstances would also constitute 'de facto
control' pursuant to legal precedent, as well as satisfying the test of 'total
and exclusive de facto, and subsequently also de jure control'.
Submission from a further group of
On 13 February 2017, another group of lawyers submitted a communique to
the Prosecutor of the ICC requesting that the Prosecutor investigate the
Australian Government for crimes against humanity.
The communique argued that Australia's immigration detention policy breaches
Article 7 of the Rome Statute because it constitutes a widespread and
systematic attack directed at a vulnerable civilian population, involving acts
of legislative, administrative and physical violence.
The authors further argued that the Australian Government (and its
agents) have imprisoned a civilian population in contravention of the right to
be free from arbitrary detention, as defined under Article 9 of the ICCPR, and
as interpreted by the UN Human Rights Committee.
They highlighted guidance provided by the Committee in relation to 'arbitrary
detention' in the context of immigration detention:
...a detention may be authorized by domestic law and
nonetheless be arbitrary. The notion of 'arbitrariness' is not to be equated
with 'against the law', but must be interpreted more broadly to include
elements of inappropriateness, injustice, lack of predictability and due
process of law. Detention in the course of proceedings for the control of
immigration is not arbitrary per se, but the detention must be justified as
reasonable, necessary and proportionate in light of the circumstances and
reassessed as it extends in time. Asylum seekers who unlawfully enter a State
party’s territory may be detained for a brief initial period in order to
document their entry, record their claims, and determine their identity if it
is in doubt. To detain them further while their claims are being resolved would
be arbitrary absent particular reasons specific to the individual, such as an
individualized likelihood of absconding, danger of crimes against others, or
risk of acts against national security. The decision must consider relevant
factors case-by-case, and not be based on a mandatory rule for a broad
category; must take into account less invasive means of achieving the same
ends, such as reporting obligations, sureties or other conditions to prevent
absconding; and must be subject to periodic reevaluation and judicial review.
The decision must also take into account the mental health condition of those
detained. Individuals must not be detained indefinitely on immigration control
grounds if the State party is unable to carry out their expulsion. The
inability of a State party to carry out the expulsion of an individual does not
justify indefinite detention.
The authors argued that this conduct constituted torture within the
meaning of Article 7(1)(f) of the Rome Statute,
and persecution within the meaning of
The authors further submitted that the Australian Government, and its agents,
had contravened article 7(2)(d) of the Rome Statute by forcibly deporting
individuals who were 'lawfully present' on open water at the time they were
stopped, and may have been lawfully present if they were in Australian waters
at the time.
At the date of this report, there is no publicly available information
in relation to any action taken by the Office of the Prosecutor of the ICC in
response to any of these submissions.
Australia's ratification of the OPCAT
On 8 February 2017 the Australian Government announced its intention to
ratify the Optional Protocol to the Convention against Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment (OPCAT) by the end of this year.
The OPCAT was adopted by a General Assembly of the UN on 18 December 2002, and
entered into force on 22 June 2006.
The OPCAT sets out a number of general principles, establishes a
'Subcommittee on Prevention' and sets out its mandate, and lays down national
preventative mechanisms. It states that:
the objective of the OPCAT is to establish a system of regular
visits by independent international and national bodies to place where people
are deprived of their liberty;
'deprivation of liberty' means
...any form of detention or imprisonment or the placement of a
person in a public or private custodial setting which that person is not
permitted to leave at will by order of any judicial, administrative or other
at a domestic level, each state will establish one or several
visiting bodies for the prevention of torture and other cruel, inhuman or
degrading treatment or punishment (to be known as a 'National Preventative
each state party will allow visits by these mechanisms 'to any
place under its jurisdiction and control where persons are or may be deprived
of their liberty';
each state party undertakes to receive the Subcommittee on
Prevention and grant it access to places of detention, provide all relevant
information to the Subcommittee, and encourage and facilitate contacts between
the Subcommittee and its national preventative mechanisms.
Nauru signed the CAT on 26 September 2012, and became a State Party to
the OPCAT in January 2013. The Subcommittee on Prevention visited Nauru for the
first time in May 2015. Subcommittee members, who visited the RPC, noted that
Nauru was yet to establish a National Preventative Mechanism, and commented on
the importance of doing this 'given the number of people currently being held
on the island'.
PNG is yet to ratify the CAT.
Obligations of the department pursuant to the Work Health and Safety Act
The committee received a significant body of evidence dealing with the
department's responsibilities pursuant to the Work Health and Safety Act
2011 ('WHS Act'), the capacity of Comcare to investigate alleged breaches
of this Act, and alleged failures on the part of the department to report
incidents which are 'notifiable' pursuant to the Act.
The committee also received evidence from Comcare, the regulator responsible
for administering this Act, as to the complexity applying the legislation in a
workplace outside Australia, particularly one which involves a number of
subcontractors. The committee heard that the department's obligations pursuant
to the WHS Act relate to RPC workers, and may extend to refugees and asylum
The WHS Act
The WHS Act establishes a national framework 'to secure the health and
safety of workers and workplaces'.
It establishes a number of duties relating to workplaces. A 'workplace' is
defined to mean a place where work is carried out for a business or
undertaking, and includes any place where a worker goes, or is likely to go,
while at work.
The WHS Act states that 'persons conducting a business or undertaking'
(known as a 'PCBU') owe a primary duty of care to workers and other people.
A PCBU must, 'so far as is reasonably practicable', ensure that the health and
safety of workers which it has engaged, or caused to be engaged while those
workers are at work in the business or undertaking.
A PCBU must also, 'so far as is reasonably practicable', ensure that the health
and safety of 'other persons' is not put at risk from work carried out as part
of the business or undertaking.
In 2012 the NSW Industrial Relations Commission indicated that 'other
persons' includes 'persons put at risk from work carried out as part of the
conduct of a [PCBU]'.
The WHS Act states that 'reasonably practicable' means 'that which is,
or was at a particular time, reasonably able to be done in relation to ensuring
health and safety' taking in account (among other things) the likelihood of the
hazard or risk, the degree of harm which might result from the risk or hazard,
and what the person concerned knew or should have known about the risk and ways
of eliminating or minimising it.
The WHS Act imposes obligations on a PCBU. A PCBU must advise Comcare
when a 'notifiable incident' has taken place 'arising out of the conduct of the
business or undertaking'.
A notifiable incident means the death of a person, a serious injury or illness
of a person, or a dangerous accident.
The WHS Act provides that:
a PCBU must notify Comcare of a 'notifiable incident' immediately
after becoming aware that a notifiable incident 'arising out of the conduct of
the business or undertaking has occurred'.
The penalty for failing to do this is $50,000 in the case of a body corporate
and $10,000 in the case of an individual;
a PCBU must also keep a record of each notifiable incident for at
five years from the day the notice of the incident was given to Comcare.
Failure to do this carries a penalty of $5,000 in the case of individuals and
$25,000 in the case of a body corporate; and
a person with management or control of a workplace at which a
notifiable incident has taken place must ensure, so far as is reasonably
practicable, that the incident site is 'not disturbed until an inspector
arrives at the site or any earlier time than an inspector directs' (noting that
matters associated with a police investigation are not to be prevented by this
The limitation period for prosecutions under the Act is two years from
the time the offence first came to Comcare's attention, or one year after a
coronial report, coronial inquiry or inquest ended, or other official inquiry
Section 15.1 of the Criminal Code (extended geographical
jurisdiction – category A) applies to an offence under the WHS Act.
A person does not commit an offence to which section 15.1 applies unless (among
other things) the conduct constituting the alleged offence occurred:
wholly or partly in Australia; or
wholly or partly outside Australia and a result of the conduct
occurred wholly or partly in Australia; or
wholly outside Australia and, at the time of the alleged offence,
the person was an Australia citizen or a body corporate incorporated under
Comcare inspectors have a number of powers under the Act, including the
obtain information (by serving a written notice on a person
requiring that person to give the regulator particular information, produce
documents required, and/or appear before the person to give oral or written
evidence, or produce those documents);
enter a workplace;
require the production of documents or answer questions.
Comcare explained that the extended geographical jurisdiction outlined
above does not apply to the exercise of these powers.
Applying the Act to Australia's
- that is regards the department as a PCBU in relation to its role in
that as a PCBU, the department has 'duties that extend into overseas
asylum seekers and refugees in Nauru and PNG are considered 'other
persons' for the purposes of the WHS Act;and
that the department owes a duty of care to its own employees working at
the RPCs, contractors, subcontractors, and other persons to ensure that they
are not put at risk from work carried out as part of the undertaking.
Comcare also explained that its capacity to investigate matters at the
RPCs is unclear. Acting Chief Executive Office Ms Lynette MacLean advised the
committee that, although it is clear that the department is a PCBU for the
purposes of the Act:
What is less clear, however, is the extent to which the DIBP
owes duties, and the extent to which they have control of the operations of
RPCs, particularly as they relate to detainees. Understanding the extent of
these duties is complex and needs to be assessed on a case-by-case basis, as it
involves relationships with foreign governments, foreign and Australian
contractors, and employees of DIBP.
Ms MacLean further described the issue of who owes duties to whom, and
whether a worker works for the department or a foreign government as a 'complex
web', and one which requires a case-by-case analysis of individual incidents or
Comcare advised the committee that a particular incident may be a
notifiable incident for the purposes of the Act, but this requires consideration
of 'who has been involved, how they were involved, what the contractual
arrangements were and who was responsible for what'.
It also requires consideration of whether the alleged conduct in question [meets]
the threshold for a 'notifiable incident', as defined in section 35 and
explained further in section 36. Comcare explained that an incident (for
example, serious mental injury or illness, or the sexual assault of a child),
may meet the description of a 'notifiable incident', but this will depend on the
individual circumstances of the case.
Comcare explained that since both RPCs have been re-classified as being 'open
centres', the questions as to whether or not a duty is enlivened, remain the
Comcare's work relating to the RPCs
Comcare explained that it has undertaken some work on the RPCs in Nauru
and PNG, including visiting the RPCs themselves and requesting information from
Comcare has visited both the Nauru and Manus RPCs three times, with the
last visits taking place in 2015.
It explained that its powers did not extend extra-territorially, and so it had
to seek the consent of the department in order to do so, and this consent was
Comcare also advised that since 2012, it has commenced 17 inspections at the
Manus RPC, as well as 17 inspections at the Nauru RPC.
Comcare inspectors conducted inspections of the Manus RPC in September
and October 2014, and November 2015; and the Nauru RPC in December 2014, and
The findings and observations of these inspections include:
Inspection of the Manus RPC, September and October 2014
significant mould growth on timber shower doors,
and a recommendation that these doors be replaced with more mould resistant
the approval process to have patients medically evacuated from
the Manus RPC was 'convoluted' and could 'unnecessarily delay an evacuation',
and a recommendation that a 'more streamlined approached with less layers would
have a direct impact on providing the best care';
Inspection of the Manus RPC, October 2015
where a detainee was placed in the Managed Accommodation Area
(MAA) Wilson Security staff were required to notify the department of any stay
longer than 24 hours;
if there is an 'imminent risk of harm', Wilson Security will
discuss this with the department immediately;
the IHMS Clinic is large and well equipped;
IHMS staff identified that time and uncertainty were factors
impacting the mental health of detainees;
shower doors and floors had been replaced with non-porous
departmental staff viewed their role on-site as 'one of capacity
building and contract management;
a recommendation that Comcare inspectors return in the next 6-9
Inspection of the Nauru RPC, October 2014
mould on the tents in RPC2 and RPC3 be treated;
consider increasing bathroom facilities;
the department consider providing information and/or advice to
staff and stakeholders regarding the 'health impacts, if any, as a result of
being geographically located near phosphate mining activities (short, medium
and long term) and the 'altered quality, if any, of bottled water after
significant sun exposure';
Inspection of the Nauru RPC, November 2015
A significant issues with mould and consequent damage to
accommodation blocks, including severe damage to the internal linings of
individual accommodation pods;
IHMS advised that there is a 'high rate of workers that IHMS do
not believe have the appropriate fitness for site' and that pre-deployment
screening of such staff is not being conducted appropriately;
IHMS advised that department staff at an APS 4 to 6 level were
being deployed for unreasonable periods (13 weeks), and this was leading to
behavioural changes in some workers, including increased alcohol consumption
The Republic of Nauru Hospital was, at the time of the
inspection, 'very basic and generally in a state of poor repair';
School attendance is reported to be as low as 57 per cent;
in relation to previous recommendation that advice be given to workers
about the potential risks of working close to phosphate mining activity, and
any altered quality of bottled water, staff advised inspectors that this
information is not provided in deployment preparation;
the department consider providing information and/or advice to
staff and stakeholders regarding the 'health impacts, if any, as a result of
being geographically located near phosphate mining activities (short, medium
and long term)' and the 'altered quality, if any, of bottled water after
significant sun exposure';
Comcare inspectors return to conduct an inspection in the next
Comcare explained that in March 2016, it exercised its section 155 power
to obtain information from the department because it was able to serve that
notice at the department's headquarters in Australia.
Ms MacLean described the process as:
[An] ongoing dialogue, if you like, with Immigration in
relation to their responsibilities as a business or undertaking of the
Commonwealth. We asked them to provide documents so we could ascertain the
extent of the business or undertaking at the regional processing centres and
the extent of their duties under the WHS Act, as far as reasonably practicable.
We asked for quite a breadth of material from them.
Comcare, which provided the committee with a copy of this notice,
requested a wide range of documents from the department, including copies of:
all executed contracts, agreements, deeds or memoranda of
understanding that the department entered into with all corporations,
individuals and foreign States for the provision of services which refer to,
affect or could reasonably be expected to relate (whether wholly or in part) to
the health and safety of Transferees at all RPCs since 24 March 2014 to the
date of the notice;
all documents, which refer to, affect, or could reasonably be
expected to relate (whether wholly or in part) to the health and safety of
Transferees, relating to the establishment and operation of the Joint Committee
for the practical arrangements required to implement the Nauru and PNG Memorandums
of Understanding, including sub-committees relevant to health and safety;
information about the day-to-day operations of the RPCs since 24
March 2014 including details of the scope of responsibilities and duties of
each of the PNG and Nauruan operations managers and their respective duty
managers; and details of the roles and responsibilities of the department's
any complaints processes that employees of the department and
contract service provider employees were expected to follow;
any risk assessments relating to the risk of serious
psychological illnesses to Transferees, or the risk of rape, assault, sexual
assault or sexual harassment to Transferees;
any work health and safety plans, and any documents associated
with their development (including meeting minutes);
any documents which set out or demonstrate the existing policy
framework for identifying, reporting, responding to, mitigating and/or
preventing incidents of sexual and other physical assault at the RPCs; and
any documents relating to the development of, and content of, any
child protection framework (however described) within the RPCs.
Comcare explained that the department has provided information in
response, but 'there were gaps in the information which prevent [Comcare] from
finding a definitive view of where some duties lie or do not lie'.
Comcare advised that it had received the following notifications of
'notifiable incidents' :
|| Nauru RPC
|| Manus RPC
| 2016-2017 (year to date)
Comcare explained to the committee that it can access material from a
range of sources in relation to potential notifiable incidents at the RPCs, and
that 'having establishing that threshold question...about the jurisdiction',
would make inquiries in relation to that intelligence.
It clarified that notifiable incidents are just one of several triggers for
Comcare to commence an inspection.
Mr Justin Napier of Comcare explained that its approach to the
application of the Act to the department, in relation to the RPCs has been:
...to establish whether, and the extent to which, DIBP has
duties to detainees. Having established that threshold question, we issued the
155 notice. We have assessed that, we have sought legal advice and we are in a
position, now that we have clarity as to whether the act extends to the risks
related to detention...which we have established now—to ask those questions and
seek further information.
Ms MacLean explained that, at this point, Comcare cannot be satisfied
that all notifiable incidents have been reported to Comcare, or that the
department or any of its contractors may or may not be in breach of the WHS
Comcare explained that it plans to conduct a further visit to the Nauru
and Manus RPCs, but is yet to establish either the scope or terms of reference
in relation to this proposed visit.
Comcare explained that it, in its view, the section 232 period of
limitation (of two years) for offences under the WHS Act, does not commence
until Comcare is in possession of sufficient facts so as to make a
It confirmed that it does not regard itself to be in such a position and, as
such, does not believe that the limitation period 'clock' has started counting
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