On Tuesday 15 March, a Sydney Local Court magistrate is expected to set down a hearing date for the charges, laid in March last year, against the Commonwealth government’s Department of Home Affairs, and a health services contractor.
The charges, brought under the Commonwealth Work Health and Safety Act 2011, allege that both Home Affairs and International Health and Medical Services Pty Ltd (IHMS) had been seriously neglecting the mental health of a detainee, who took his own life at Sydney’s Villawood immigration detention centre in 2019.
Ian Rintoul, spokesperson for Sydney’s Refugee Action Coalition, explained the background.
“IHMS is contracted by the Commonwealth government to provide or arrange medical care for people held in immigration detention.
“All immigration detention facilities (IDFs) are Commonwealth government workplaces, and thus come under the Commonwealth WHS Act, wherever they’re located and whatever they’re called. Hence the Act covers “alternative places of detention” (APODs), such as the Park Hotel in Carlton, Melbourne.”
Refugee advocates welcome the expected setting of a hearing date.
Margaret Sinclair, spokesperson for the Refugee Action Collective (Victoria), said, “The hearing will be the first time that Home Affairs or IHMS have been called to account in court, under criminal law, for their treatment of an immigration detainee, offshore or onshore”. Ms Sinclair holds a diploma in Work Health and Safety.
A 10 March 2021 media release from the WHS Act’s regulator, Comcare, sums up the case.
“Following an investigation by regulator Comcare, the Commonwealth Director of Public Prosecutions has filed two charges each against Home Affairs and IHMS alleging they failed in their duties under the federal Work Health and Safety Act 2011 (WHS Act).
The charges relate to an incident on 4 March 2019 where a 26-year-old Iraqi national took his own life at Sydney’s Villawood Immigration Detention Centre.
It is alleged that Home Affairs and IHMS failed to provide and maintain a safe system of work at the facility as part of their health and safety duties that extend to detainees.
It is also alleged that Home Affairs and IHMS failed to provide necessary training, information, and supervision to mental health staff in relation to their care for the detainee.
Each charge … [carries] a maximum penalty of $1.5 million.”
Ian Rintoul added, “Refugee advocates see the poor treatment of IDF detainees by Home Affairs – via its Australian Border Force unit, and the Serco guards and IHMS staff that ABF oversees – as involving breaches of not only human rights obligations and the common law duty of care, but potentially also in some cases, criminal breaches of the WHS Act. Findings of ‘guilty’ in the Villawood case could confirm that alleged criminality.”
Margaret Sinclair mentioned the Park Hotel and asked, “Why did Home Affairs, in December 2021, nine months after being charged with WHS Act offences, permanently lock the Hotel’s windows, exposing detainees to a COVID risk by depriving them of fresh air? And why did Home Affairs keep the 45 detainees waiting from March to August 2021 before offering them a COVID vaccination jab? Such maltreatment put detainees’ health at potentially grave risk; and 21 of the 45 contracted the virus.
“RAC (Vic) members wrote to Comcare pointing to those two unprevented risks,” said Sinclair, “plus the fact that just one IHMS nurse was treating both COVID and non-COVID detainees. They asked Comcare to enforce compliance with the Act. Comcare’s response was, basically, ‘we find no breach of the Act’. The windows remain sealed.
“Those same members have made, since 2015, a total of 75 evidence-based requests for WHS Act enforcement. A number of these requests relate to suicides and suicide attempts in immigration detention centres. All 75 Comcare responses have found, ‘there’s no evidence of any breach’. This makes this current prosecution against Home Affairs all the more surprising.”
Rural Australians for Refugees National President, Louise Redmond added her concerns. “The Villawood and Park Hotel cases are just the tip of the iceberg when it comes to the health of most IDF asylum seekers and refugees. RAR groups around Australia have been doing their best to support desperate people in detention centres in Brisbane, Melbourne and Adelaide.
“Those detainees have endured a health-destroying double whammy.
“First, 6–7 years in offshore detention with hardly any health care; then secondly, they were brought here in 2019–20 under the ‘Medevac’ amendment to the Migration Act for “medical or psychiatric assessment or treatment”, only to be locked up and allowed limited, if any, access to the health care they were brought here to receive.”
Doctor Barri Phatarfod is the founder and President of Doctors 4 Refugees. She says, “It is well established that there is a direct correlation between prolonged and indefinite detention and severe mental health issues, including PTSD and suicidality. Doctors therefore commend Comcare on pressing charges against Home Affairs and IHMS, and will follow the upcoming trial with interest.”
Ian Rintoul concluded, “We call for the immediate release of those IDF detainees. Ministers Andrews and Hawke have a ‘god power’ discretion that could prevent such risks to detainees with a penstroke, by ending their detention. Why don’t they exercise that power?
“But the detainees need more than just release. The government’s approach of sporadic eventual release and little else is a cruel recipe for homelessness and destitution. The detainees need secure accommodation, together with access to work, education, and comprehensive health care, plus income and welfare support. They need permanent visas.”
“Summing up”, said Margaret Sinclair, “the hearing of the charges will highlight the alleged criminality of Australia’s maltreatment of people in immigration detention as well as the ongoing need for WHS Act compliance and enforcement in these workplaces.
“But more fundamentally, it is detention itself that has devastated the health of these people: they should never have been detained in the first place.
“We call for the mandatory and indefinite detention of people seeking asylum in Australia to be ended, once and for all.”
Contacts: Ian Rintoul 0417 275 713; Margaret Sinclair 0417 031 533.
