Talbot, Anna --- "Work Health and Safety Act v Australian Border Force Act: immigration detention workers caught in the crossfire" [2016] PrecedentAULA 44; (2016) 135 Precedent 22

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WORK HEALTH AND SAFETY ACT v AUSTRALIAN BORDER FORCE ACT: IMMIGRATION DETENTION WORKERS CAUGHT IN THE CROSSFIRE

By Anna Talbot

The Work Health and Safety Act 2011 (Cth) (WHS Act) imposes numerous obligations on workers in relation to health and safety in the workplace. Primary obligations rest on the ‘person conducting the business or undertaking’ (PCBU), the legal person operating the workplace. Those obligations can be implemented by officers of the PCBU. Workers who are not officers of the PCBU have lesser obligations to refrain from undermining health and safety of anyone using the workplace.

The obligations to protect health and safety extends in turn beyond workers in the workplace to all ‘other persons’ affected by the conduct of the business or undertaking. In the case of immigration detention, officers and workers must consider the health and safety of detainees and all other people using those facilities.

In this way the WHS Act creates a complex web of obligations to ensure that workplaces are safe. These obligations are complemented for many by professional obligations, including ethical obligations that, if infringed, could jeopardise the individual’s ability to continue in their chosen field.

The Australian Border Force Act 2015 (Cth) (ABF Act), imposed a whole new set of obligations on workers in immigration detention centres. Under the ABF Act, workers are obliged to refrain from disclosing certain information. There are some exceptions in the ABF Act that allow disclosure in certain circumstances. Other legislation also permits Commonwealth workers to make public interest disclosures. These obligations and exceptions must be clearly understood by all immigration detention workers: criminal and civil sanctions, as well as professional repercussions, could result if they are not navigated well.

This article examines how these various obligations can coexist.

OBLIGATIONS UNDER THE WORK HEALTH AND SAFETY ACT

Workplace safety is everyone’s responsibility under the WHS Act. Primary responsibility is held by the PCBU. Its primary duty of care is outlined in s19: it must ensure the health and safety of workers while they are at work at the business or undertaking. This duty also extends to ensuring that the health and safety of other persons is not put at risk by the conduct of the business or undertaking. In immigration detention, other persons would include refugees and asylum seekers.

Officers of PCBUs have a duty to exercise due diligence in ensuring that the duties of PCBUs are fulfilled: s27. Officers are defined under ss4 and 247 as including people who make or participate in making decisions affecting a substantial part of the business. This could include people employed by contractors if they had the requisite degree of influence on the conduct of the business or undertaking in the workplace in question. Due diligence obligations include taking reasonable steps to:

• ensure that the PCBU has and uses appropriate resources and processes to eliminate or minimise risks to health and safety;

• ensure that the PCBU has appropriate processes for receiving and considering information regarding incidents, hazards and risks and can respond to that information in a timely way;

• ensure that the PCBU has and implements processes to comply with duties or obligations it has under the WHS Act; and

• verify that resources and processes are available and used to implement these due diligence obligations.

Officers can be convicted or found guilty for failing to meet these obligations, even if the PCBU is not convicted or found guilty of a related breach: s27(4). Some disclosures made in the media, including the ABC’s Four Corners program on the death of Hamid Khazaei, suggest that due diligence obligations have not been adequately fulfilled in the past.^[1]

Workers other than officers also have obligations under the WHS Act, although they are less onerous. Workers include all people working at a workplace other than officers. Contractors and employees of contractors are specifically included as workers for the purposes of the WHS Act obligations: s7(1). The WHS Act requires that workers take reasonable care that their acts or omissions do not adversely affect health and safety of other persons. They should comply as far as possible with reasonable instructions by the PCBU to allow the PCBU to comply with the Act. They should also comply with reasonable policies or procedures of the PCBU in relation to health and safety: s28.

PCBU’s are obliged to report ‘notifiable incidents’ that result from the conduct of the business or undertaking to the regulator, Comcare: s38. Officers must exercise due diligence to ensure that the PCBU complies with its duties or obligations (s27(1)), including the duty to notify. Notifiable incidents include deaths, serious injuries or illnesses and dangerous incidents that arise as a result of the conduct of the business or undertaking: ss35, 36, 37.

It is not always clear, however, if a disclosure under the WHS Act is required. In the context of immigration detention, assessments as to whether an incident is notifiable, and therefore reportable, have been inconsistent. A significant number of incidents that have occurred in immigration detention and reported to Comcare have been assessed as not-notifiable, either because no injury occurred or because an injury occurred but it did not result from the conduct of the business or undertaking. Whether an incident is assessed as resulting from the conduct of the business or undertaking or not requires clarification, as similar incidents have been assessed in different ways in the past. Serious threats to health and safety, including sexual assault, self-harm and even deaths have been assessed as both notifiable and not-notifiable, with a lack of clarity as to why these distinctions have been made.^[2]

MANDATORY REPORTING AND PROFESSIONAL OBLIGATIONS

In addition to obligations under Commonwealth legislation, many officers and workers in immigration detention facilities will have obligations under state or territory legislation. Some workers will also have professional obligations.

Allegations of child abuse in immigration detention have been made in the media and also revealed in government inquiries.^[3] Mandatory reporting obligations require a number of professionals to report suspected child abuse and neglect to various authorities. Across Australia, doctors, nurses, teachers and police generally have some level of obligation to report child abuse that they suspect or believe has occurred.^[4] Others who suspect or believe child abuse has occurred also have reporting requirements, depending on the state or territory.^[5] The obligation varies depending on where in Australia the professional’s obligations arise, as they are state-and territory-based obligations. Generally there will need to be some geographic connection between the jurisdiction in question and the professional or the child for the obligation to be enlivened.^[6] Thus, the obligations that apply will usually relate to the state or territory in which the detention facility is situated.

The legislation in the ACT may be of relevance in relation to offshore immigration detention, where the geographic connection would otherwise be absent. Functions under ss354 and 356 of the Children and Young People Act 2008 (ACT) may be exercised with regard to a child or young person arising from something that happened in the ACT. Those sections relate to voluntary or mandatory reporting of child abuse, which could potentially have relevance to actions undertaken in federal government departments based in that territory, if child abuse arose out of those actions. This possibility is untested in the courts. It is also unclear whether abuse of a child in Commonwealth-mandated detention would be subjected to ACT laws.

In addition to reporting requirements, many workers also have professional obligations. Doctors, for example, have professional obligations emanating from the Medical Board of Australia (MBA). The MBA stipulates that good ‘medical practice involves using ... experience and influence to protect and advance the health and wellbeing of individual patients, communities and populations’.^[7] Where a conflict of interest exists between the primary duty to the patient and other financial, professional or personal interests, doctors must resolve these conflicts in the patient’s best interests.^[8] Thus, where there is a conflict regarding their obligations as workers in immigration detention facilities and their duty to the patient, doctors are obliged to prioritise the interests of the patient.

Social workers and teachers may also be employed in immigration detention facilities. Under their code of ethics, social workers are committed to engaging in advocacy to work to achieve human rights and social justice and working to improve workplace policies, even where their employers’ policies or official orders are not compatible with these ethical provisions.^[9] Teachers also have state-and territory-based codes of ethics, which generally include obligations to act in the best interests of their students.^[10]

It is unclear to what extent these obligations would apply in offshore detention. If the individual’s position depended on their membership of the profession in question, it is arguable that those obligations would apply. It is indeed possible that infringing of these obligations, by refraining from advocating in detainees’ interests as required by their professional obligations, could have ramifications for an individual’s ability to continue to practise in their chosen profession.

AUSTRALIAN BORDER FORCE ACT 2015

The ABF Act imposes a number of obligations on workers who are an ‘entrusted person’, including Immigration and Border Protection workers, contractors and consultants for the Department. Section 42 of the ABF Act stipulates that an entrusted person, or someone who has been an entrusted person, commits an offence if they disclose ‘protected information’. Protected information is any information that was obtained in their capacity as an entrusted person: s4. This means that anyone working at an immigration detention facility cannot disclose any information that they obtain while working at that facility, either during their period of service or after they leave.

There are exceptions to this prohibition, including where the entrusted person makes the disclosure in the course of their employment, or pursuant to another piece of legislation: s42(2)(b) and (c). These exceptions have not yet been interpreted by the courts, so it is unclear whether disclosures required under the WHS Act or in accordance with professional obligations would infringe the ABF Act.

An exception also exists where the disclosure is to reduce a threat to health and safety under s48. For that exception to be available, the entrusted person must believe that the disclosure is ‘necessary to prevent or lessen a serious threat to the life or health of an individual; and ... the disclosure is for the purposes of preventing or lessening that threat’. It is not clear when a disclosure will be considered ‘necessary’. There is no exception to advocate for detainees in line with professional obligations outside of these exceptions found in ss42 and 48.

PUBLIC INTEREST DISCLOSURE ACT 2013

The Public Interest Disclosure Act 2013 (Cth) may offer protection to individuals making disclosures ostensibly in breach of s42 of the ABF Act. As pointed out by Khanh Hoang in the Conversation, that legislation protects whistle blowers in specific circumstances from suffering reprisals.^[11] It applies to public officials or former public officials, protecting them from any adverse consequences of making a public interest disclosure (s7(1)). Contractors and their employees are included in the definition of public official under s69(15)-(16). As such, protections under this legislation could assist workers to meet their ethical obligations even where there is no legislative imperative to disclose protected information.

For protection to be available under this Act, however, certain criteria must be met. The disclosure must relate to ‘disclosable conduct’. Disclosable conduct is conduct engaged in by an agency, a public official or a contractor, and includes conduct that is against the law: s29. Conduct is not disclosable simply because a person disagrees with a government policy or action taken by a government minister.

Requirements that must be met for a public interest disclosure change depending on whether the disclosure is an internal disclosure, an external disclosure, an emergency disclosure or a legal disclosure. Where a disclosure is an external disclosure, it must have been disclosed internally first. An investigation must follow, and the person may make the external disclosure only if the internal disclosure or the response to it is considered to be inadequate, or the investigation did not take place within the required time frame: s26. Intelligence information cannot be disclosed as a public interest disclosure: s26, item 2(h).

CONCLUSION

Given the severity of the penalties under the ABF Act, officers and workers might be less inclined to report some workplace health and safety incidents that occur in these grey areas. If it is found that these incidents were in fact reportable, the WHS Act might be infringed. There appears to be potential for officers and workers to face significant difficulty in avoiding criminal liability or civil penalty under one of these Acts in certain circumstances. If an incident is reported and assessed is not notifiable, a worker may breach obligations under the ABF Act. Conversely, if a notifiable incident is not reported the WHS Act may be infringed.

This is a complex web of legislation, much of which appears to be potentially in conflict, with many untested challenges to officers or workers employed in immigration detention. In some circumstances, officers or workers must navigate a fine line of legal obligations to ensure that they do not breach various obligations both to report incidents and to maintain secrecy, as well as professional obligations. The uncertainty and complexity surrounding these workers’ legal obligations is particularly concerning as breaches of the ABF Act can result in a criminal charge and imprisonment for two years. Workers in immigration detention would be well advised to seek legal advice as to their obligations and potential liabilities.

Anna Talbot is the Legal & Policy Adviser for the Australian Lawyers Alliance. PHONE [phone] EMAIL [e-mail].

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^[1] Geoff Thompson and Wayne Harley, ABC Four Corners, Bad Blood, 25 April 2016, http://www.abc.net.au/4corners/stories/2016/04/25/4447627.htm.

^[2] Australian Lawyers Alliance.

^[3] See, for example, Sarah Whyte, Sydney Morning Herald, ‘Detention centre child sex abuse claims number in dozens’, 30 September 2014, http://www.smh.com.au/federal-politics/political-news/detention-centre-child-sex-abuse-claims-number-in-dozens-20140930-10o7pv.html; the Australian Human Rights Commission, The Forgotten Children (2014), https://www.humanrights.gov.au/our-work/asylum-seekers-and-refugees/publications/forgotten-children-national-inquiry-children; the Moss Review, commissioned by the Department of Immigration and Border Protection (2015), https://www.border.gov.au/ReportsandPublications/Documents/reviews-and-inquiries/review-conditions-circumstances-nauru.pdf; the Select Committee on the Recent Allegations relating to Conditions and Circumstances at the Regional Processing Centre in Nauru, Final Report, (2015), http://www.aph.gov.au/select_regionalprocessingnauru.

^[4] Children and Young People Act 2008 (ACT) s356; Children and Young Persons (Care and Protection) Act 1998 (NSW) s27; Care and Protection of Children Act (NT), s26; Child Protection Act 1999 (Qld), ss13E-13F; Education (General Provisions) Act 2006, ss365-366A; Children’s Protection Act 1993 (SA), s11; Children, Young Persons and Their Families Act 1997 (Tas), s14; Children, Youth and Families Act 2005 (Vic), s184; Children and Community Services Act 2004 (WA), s124B.

^[5] See Ben Mathews, Mandatory reporting laws for child sexual abuse in Australia: a legislative history: Report for the Royal Commission into Institutional Responses to Child Sexual Abuse, Queensland University of Technology, August 2014, https://www.childabuseroyalcommission.gov.au/documents/published-research/royal-commission-report-ben-mathews-for-rc-publica.

^[6] See Children and Young People Act 2008 (ACT); Children and Young Persons (Care and Protection) Act 1998 (NSW); Care and Protection of Children Act 2007 (NT); Public Health Act 2005 (Qld); Education (General Provisions) Act 2006 (Qld); Child Protection Act 1999 (Qld); Children’s Protection Act 1993 (SA); Children, Young Persons and Their Families Act 1997 (Tas); Children, Youth and Families Act 2005 (Vic); Children and Community Services Act 2004 (WA). The Family Law Act 1975 (Cth) contains reporting obligations in relation to children engaged in family law disputes.

^[7] Medical Board of Australia, Code of Conduct, (2014), 5.3.

^[8] Ibid, 8.11.

^[9] Australian Association of Social Workers, Code of Ethics (2010), 1.2, 5, 1.3, 5.4.1.

^[10] ACT Department of Education and Training Teachers’ Code of Professional Practice (2006), NSW Department of Education and Communities, The Code of Conduct (2014); Teachers Registration Board of the Northern Territory, Code of Ethics (undated); Queensland College of Teachers, Code of Ethics for Teachers in Queensland (2008); Teachers Registration Board of South Australia, Code of Ethics (2006); Teachers Registration Board Tasmania, Code of Professional Ethics for the Teaching Profession in Tasmania (undated); Victorian Institute of Teaching, The Victorian Teaching Profession Code of Conduct (undated); WA Department of Education, Code of Conduct (2011).

^[11] Khanh Hoang, ‘Border Force Act entrenches secrecy around Australia’s asylum seeker regime’, 2 July 2015, The Conversation, https://theconversation.com/border-force-act-entrenches-secrecy-around-australias-asylum-seeker-regime-44136.