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Reports that a mentally ill detainee on Manus Island was sent to prison instead of receiving medical treatment indicates that workplace health and safety law continues to be flouted in immigration detention.

A report in the Guardian yesterday that a mentally ill detainee on Manus Island was sent to prison and later beaten, instead of receiving medical treatment, indicates that the Commonwealth government continues to ignore its obligations under the Work Health and Safety Act 2011 (Cth) (WHS Act), the Australian Lawyers Alliance (ALA) said today.

The WHS Act requires that the Department of Immigration and Border Protection (the Department) not do anything to compromise the psychological health of anyone in immigration detention: workers or detainees.

“While contractors such as Broadspectrum and Wilson may be directly involved in risky conduct, ultimate responsibility rests with the Department,” said ALA spokesperson Greg Barns today.

“The Department is well aware of its obligations under the WHS Act. They have been reporting health and safety incidents occurring on Manus Island to the regulator, Comcare, for years.

“Just this month ALA released a report detailing the Department’s obligations under the WHS Act. The report clearly demonstrates the Department’s obligations to ensure that its actions in running immigration detention centres do not put the health and safety of detainees at risk. Comcare is obliged to investigate threats to health and safety, but they can only do that if the Department reports them.

“Our investigations have shown that psychological health is at particular risk in immigration detention. This puts the Department on notice that it must take care of detainees’ mental health. If detainees with mental health problems are beaten and detained in prison, rather than being provided with essential mental health support, the Department will be in clear breach of its obligations under the WHS Act. Putting a mentally ill man in prison is exactly the type of action that would put his health and safety at risk,” Mr Barns said.

Under the WHS Act, failure to comply with the primary duty of care to detainees is an offence. If the Department commits such an offence and exposes the person to a risk of serious injury or illness, or is reckless as to that risk, penalties increase.

“The Department knows that it cannot hide behind contractors such as Broadspectrum and Wilson, and offshore detention regimes are not going to protect it. Under the WHS Act, the Department cannot contract out of its obligations. Depending on the contracts in place, both the Department and contractors could be liable, including individual liability for officers. The WHS Act also applies in detention centres in Papua New Guinea because the Act specifically refers to it having extra territorial reach,” said Mr Barns.

The ALA report, Untold Damage, is available here: http://www.lawyersalliance.com.au/ourwork/untold-damage/untold-damage.

For further details, contact Australian Lawyers Alliance Legal and Policy Adviser Anna Talbot on (02) 9258 7700 or at media@lawyersalliance.com.au.