Australia : Royal Commission into juvenile detention should include OHS
Vision of the mistreatment of children in juvenile detention centres in Australia’s Northern Territory was aired on the ABC Four Corners program on 25 June 2016. Within 24 hours, Prime
Minister Malcolm Turnbull announced a Royal Commission into juvenile detention. The treatment shown was not new and had been known by the NT Government and Ministers for several years but the quick decision for a Royal Commission shows the political influence of television and current affairs programs. Although not yet written, part of the Royal Commission’s terms of reference should be the investigation of the workplace safety context of juvenile detention centre management and the treatment of the young inmates.
Duty of Care
As with the treatment of people under care in offshore detention centres, the NT Government has a duty of care under its own Work Health and Safety laws to workers and others. The Primary Duty of Care under the Work Health and Safety (National Uniform Legislation) Act – Section 19 states that:
“A person conducting a business or undertaking must ensure, so far as is reasonably practicable, that the health and safety of other persons is not put at risk from work carried out as part of the conduct of the business or undertaking.”
The issue of duty of care will be crucial for the Royal Commission as Senator Pat Dodson has discussed in an ABC News report on 26 June 2016. Dodson said:
“The fact that young people had been treated in this matter obviously shows that there is no concept of the duty of care, which is a principal matter highlighted in the Royal Commission into Aboriginal Deaths in Custody…. There’s no clarity about the obligations that the minister responsible in the Northern Territory actually conducted his duties in any diligent matter…. It’s clear that the senior officer on the occasion that the gas was being used was very derelict with his leadership.” (emphasis added)
This quote is useful in an occupational health and safety (OHS) sense as it touches on three common elements of OHS compliance and thought – the concept of the duty of care, diligence and leadership. Dodson did not mention culture but Prime Minister Malcolm Turnbull did by promising a
“thorough inquiry… to get to the bottom of it, and expose what occurred and expose the culture that allowed it to occur and allowed it to remain unrevealed for so long”.
A Royal Commission is unlikely to find that the NT Government or the prison guards have breached the WHS laws as the definition of reasonably practicable in this type of workplace with this type of interaction would probably allow the type of treatment revealed based on the risk assessments undertaken at the time.
Darwin lawyer Matt Punch has emphasised in the Crikey newsletter of 27 June 2016 that the activities of the prison guards were not illegal. According to The ABC News report , the Chief Minister of the Northern Territory, Adam Giles,
“said he had asked police to investigate whether the corrections officers featured in the program had broken the law and whether charges could be pursued.”
It would have been reasonable to also have NT WorkSafe undertake an investigation into whether WHS laws have been breached. NT WorkSafe has been contacted to determine with that agency has been asked to participated in any investigation on the issues raised.
At the moment without the terms of reference, OHS seems unlikely to be a focus of the Royal Commission. However the OHS issues in the Northern Territory juvenile justice systems have been previously investigated. Michael Vita undertook a review of the system and produced a report in January 2015. Vita wrote:
“Work Health and Safety is important in any setting however it is particularly important in institutional settings where practices and procedures are so important in the overall smooth operations of a detention setting where the safe management of young people with aggressive and violent history is so important. Not implementing the WHS legislation, including the provision of clearly recorded and minuted processes for inspections of the workplace has the potential to leave the organisation vulnerable in the event of serious injury in that workplace.” (page 43)
He mentions that the relevant OHS policy was required to be displayed at the Don Dale Youth Detention Centre and it contained these three goals and objectives:
- “Provide adequate WHS procedures, resources, documentation and equipment to ensure that the NTDCS and its officers and workers are responsibly able to comply with relevant WHS legislative requirements, codes of practice (if any) and current industry standards applicable to the work of the department’s business divisions;
- Provide the necessary support and assistance to workers during consultation and implementation processes to ensure that all workers are able to have reasonable input into matters that may impact upon their health and safety while at work: and
- Provide an appropriate risk identification and management procedure which is consistent with the nature of the workplace activities and the level of health and safety risk including.”
The focus is clearly on the health, safety and welfare of workers but makes no direct mention to the duty of care to “other persons” required under the NT WHS law, as quoted earlier.
There was indications of OHS work practices in the videos shown by ABC Four Corners. The restraint measures applied were intended to reduce potential harm of the inmate and the spithoods are an effective barrier for reducing the transference of disease or illness by the inmate spitting on workers. Both measures were intended as risk controls and there could be OHS justifications, except that the measures seem to be used when alternative methods were possible and methods that may have afforded the inmates more dignity.
But these control measures are lower order controls and indicate a reliance on measures that are short term rather than looking at systemic and cultural changes. Turnbull’s Royal Commission could be seen as an inevitable consequence of short term planning on the NT Government’s part and the lack of attention or inadequate responses to earlier incidents. The lack of action on earlier incidents or precursor events is a common element in the imposition of serious and expensive OHS penalties when cases come to Court. A Royal Commission can be a brutal Court.
Vita also wrote briefly about the risk assessment and management criteria which will be crucial in determining the reasonable practicability of the hazard control measures employed and the conduct of the prison guards during the Royal Commission process.
The Royal Commission has yet to get off the ground and politicians are still arguing over its scope but the catalyst for the Royal Commission, the ABC Four Corners program, has appeared after years of inquiries and reports in the inhumane treatment of young men at the juvenile detention centres. The treatment is not a new phenomenon as Pat Dodson’s referencing of previous Royal Commissions shows.
But there is a different dimension to the proposed Royal Commission. These events are not exclusively involving indigenous Australians. The focus of much of the Four Corners program was the treatment of a white boy, Dylan Voller. This effectively diminishes the role of Race from the Royal Commission. It will instead focus on the treatment of inmates regardless of their colour, although race will inevitably be discussed. This inquiry has a good chance to look at the organisational culture and systems of the services provided by the NT government, including how OHS/WHS was applied, interpreted, rationalised or dismissed. OHS/WHS will not be a major feature of the Royal Commission, just as it was not in the Trade Union Royal Commission, but it will be discussed and this discussion will provide some clarity for OHS professionals and regulators on the ethics that underpin workplace safety.