A new report into the operation of detention centres alleges possible criminal negligence by the immigration department and its contractors. By Martin McKenzie-Murray.
Criminal charges possible in detention centre operations
In this story
It was the night after Boxing Day 2013, and Dalvir Singh was sitting in a police holding cell in Pakenham, south-east of Melbourne. His life had unravelled and his prospects were grim. Singh’s blood alcohol level was 0.137, he was withdrawing from heroin, and police were inquiring about his visa status. The day before, police were called by Singh’s wife to their home on an allegation of family violence. He was issued with a notice. The next day, Singh’s wife called the police again after further violence. Singh was arrested. Evidently disgusted, she told police that she suspected her husband was illegally staying in Australia. He was.
Dalvir Singh had come to Australia in October 2007 on a two-year student visa. He intended to study hospitality, but dropped out and began driving trucks and taxis. Two years later, when Singh’s visa expired, he was deemed an unlawful non-citizen and granted a bridging visa until his departure from Australia. But Singh stayed unlawfully.
Singh met his wife in 2012, and they married and had a son together the following year. But Singh was unstable. A dangerously heavy drinker, he had also been prescribed Suboxone – an opiate replacement – to wean himself off heroin. This was unknown to both his wife and brother, who also lived in Melbourne. Now, two days after Christmas, Singh was in a police cell facing criminal charges, deportation and estrangement from his family. He tied a sheet around his neck and tried to hang himself. Officers cut him down and took him to hospital. He was discharged the following morning. By this time, an intervention order had been issued prohibiting Singh from making contact with his wife.
The death of Dalvir Singh was sad and squalid. Arrested again on January 10, Victoria Police transferred Singh to the custody of the Department of Immigration and Border Protection, where he would be held at the Maribyrnong Immigration Detention Centre. The transfer of Singh across jurisdictions was accompanied by paperwork, namely department form #1275, which was completed by police officers and which was remarkably absent of the fact Singh had attempted suicide while in police custody. The form prompted the person filling it in to note any issues of health, but as the officer would later testify in a coronial inquest, there was no category for mental health.
The Maribyrnong detention centre is owned by the department of immigration, which contracts the private company Serco to provide “a range of services to promote the wellbeing of people in detention and create an environment that supports security and safety”. In addition to Serco, the government employs the company International Health Management Services to provide healthcare to detainees.
During Singh’s induction he was fingerprinted and swabbed. This biometric data was then sent to the Australian Federal Police, to be checked against their database. Meanwhile, physical and psychological assessments of Singh were made by Serco and IHMS officers. Part of this procedure was a self-harm assessment test. An officer asked Singh how he felt. “Feeling not well,” he responded, and tearfully requested to speak to his wife. “Do you feel in control of your emotions now?” the officer asked, and Singh replied that he felt he was. Singh’s response meant the following question – whether he had thoughts of self-harm – was not asked.
There was another assessment made of Singh by a psychiatric nurse, but much of it depended upon the subject’s disclosure. The nurse concluded that he was not at risk of self-harm. What neither Serco nor IHMS staff knew during these assessments, however, was Singh’s recent suicide attempt. Had they known, they later testified, they would have responded differently.
On January 21, the Australian Federal Police came up with a match for Singh’s fingerprints. They alerted the department of immigration in an email that read: “Detainee has a serious criminal history in VIC, please also note the warnings recorded.” The warnings were included in an attachment to the email, which detailed Singh’s suicide attempt in police custody a few weeks earlier. Remarkably, those warnings were never passed on from the department to any Serco or IHMS officer. Some senior immigration department officers never read the email in the first place. Another who did failed to pass the information on because she believed staff would have been alerted to this history by Victoria Police.
There is no suggestion here of cruel indifference, but rather a jungle of jurisdictions connected imperfectly. In the bureaucratic jargon, there was a profound “information gap”. There was also a chain of false assumptions.
At 6.26pm on February 13, three weeks after the federal police’s warning to the department, Singh was captured on CCTV opening the door to his room, inspecting the hallway, then retreating into his room again. Singh then made a noose out of his bed sheet. During a routine welfare check by a Serco guard about 7pm, Singh’s body was found. CPR was administered, but he was declared dead at 7.21pm. During the coronial inquest into Singh’s death, the coroner would find of the crucial email sent by the federal police that “there was a lack of appropriate systems or processes in place to guide the management, action and communication of new and critical information about a detainee”. It is important to note that the coroner also respected the procedural changes that the Department of Immigration and Border Protection had instigated following Singh’s death.
This week, the Australian Lawyers Alliance declared that the department may have committed criminal offences in its operations of detention centres. Specifically, the possible concealment of sexual assault allegations. In the case of Dalvir Singh, the alliance suggests that regulatory breaches may have occurred under the Work Health and Safety Act. The allegations are part of what the alliance has described as a dysfunctional relationship between the department and Comcare, the federal body responsible for investigating workplace safety. “As per the Work Health and Safety Act, responsibility lies squarely with the department,” Anna Talbot, a legal and policy adviser at the Australian Lawyers Alliance, told me. “In the case of Mr Singh, there are lots of different actors. But there was not a safe system in place there. And that’s ultimately the department’s responsibility. The Work Health and Safety Act is clear – you cannot contract out your responsibilities.”
The alliance’s condemnation of the department follows a major report it released two weeks ago, entitled “Untold Damage”. As noted by The Saturday Paper, much of the report relied upon departmental documents released under the Freedom of Information Act, and found that “evidence suggests that prosecutions of the [department] and/or relevant contractors may be appropriate for some breaches of legislation that have occurred in immigration detention”.
Regarding questions about any potential criminal or regulatory breaches arising from detention centres – and their confidence in their fulfilment of the Work Health and Safety Act – the department gave a one-line response that focused only on avoiding the issue: “The coroner did not make any negative findings against the department.” The comment took the better part of a day to provide.
I put it to Talbot that Coroner Jacqui Hawkins, in her findings on the death of Dalvir Singh, did not recommend further investigation. She responded that there was no evidence that the potential liability of various parties – as outlined under the Work Health and Safety Act – was considered by the coroner. “Her role is to assess the causes of deaths and make recommendations to minimise similar risks arising in the future,” Talbot said, “not to monitor the safety of a workplace. We can’t expect coroners to enforce the Work Health and Safety Act; that is Comcare’s job. The fact that the coroner did not refer breaches of the WHS Act to the police does not mean no offences were committed.
“It is important that Comcare and other law enforcement agencies investigate possible offences in immigration detention under the WHS Act and other legislation, including the Commonwealth Crimes Act and Criminal Code, and take enforcement action where their investigations show that the law has been breached, including prosecuting any offences.”
The Australian Lawyers Alliance has since published a list of incidents occurring in onshore detention centres in the financial year of 2014-15. There are 643. A minority of them were reported to Comcare, of which just 22 were investigated. Incidents range from suicides and attempted overdoses, to epileptic seizures, faulty infrastructure and minor injuries. Talbot argues that the gap in reporting is evidence that Comcare “is not fulfilling its responsibilities”.
A spokesperson for Comcare told me: “We have a number of ongoing investigations into alleged breaches of the Work Health and Safety Act at immigration detention centres in Australia and at regional processing centres offshore.
“Comcare recently undertook an extensive two-month program of compliance inspections of work health and safety systems, controls and practices at every immigration detention facility in Australia including Christmas Island. As well as general work health and safety issues, these inspections focused specifically on identifying health and safety risks to detainees and measures to minimise these risks – including policies and procedures dealing with the mental health of detainees. Comcare continues to gather and assess information relating to the inspections.”
But the spokesperson also admitted that confusion existed over responsibility for centres in foreign countries. “Who has actual control and management of regional processing centres and how this duty applies in foreign jurisdictions is complex and is the subject of an ongoing Comcare investigation,” the spokesperson said. The Australian Lawyers Alliance denied there was any confusion, telling me the responsibility was very clearly the immigration department’s.
The Comcare spokesperson did not directly address the alleged discrepancy between the number of incidents and investigations, but told me: “The WHS Act is clear about the types of incidents that are notifiable – deaths, serious injury or dangerous incidents that are further defined in the legislation. These incidents must arise from the conduct of an employer’s business or undertaking to trigger the duty to notify. Incidents of self-harm and sexual assault, for example, may not satisfy the definition
of a notifiable incident under the act but are considered by Comcare when examining the effectiveness of WHS systems and controls.”
The Australian Lawyers Alliance is not the first group to draw attention to the conditions of detention centres, or their processes and accountability. The government’s own Moss review, released last year, made multiple recommendations regarding reporting structures for the Nauruan centre. But as this long federal campaign has shown, questions of safety and accountability of our detention centres are of little interest. The policy’s intricacy is parboiled down to just one question: Have the boats stopped?
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This article was first published in the print edition of The Saturday Paper on June 25, 2016 as "Criminal charges possible regarding detention".
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