Australian detention centres: the firms that get away with murder – literally

One of the few photos available of Mohammad Nasim Najafi

A few days ago an asylum-seeker, Mohammad Nasim Najafi, died at Yongah Hill detention centre, Western Australia. He was only 27 years old and is survived by a wife and two children. His death has raised many questions about the precise circumstances of what happened and whether more – much more – could have been done to prevent it. When death is the consequence of lack of care by an organisation the perpetrators can be subject to charges of corporate manslaughter. But they escape this prosecution simply because of a systemic culture of inaction. The two organisations responsible for the Yongah Hill detention centre are Serco (who manage the centre) and IHMS (which manages the health care there). There have been many other deaths and serious injuries through lack of care in Australian asylum-seeker detention centres, both mainland and offshore. The Australian Government also shares in the blame (and submissions in regard to the asylum-seeker program as a whole have been lodged with the International Criminal Court). Below, we provide the relevant Australian legislation regarding corporate manslaughter, together with an expert commentary; also, detailed statistics of deaths/injuries of asylum-seekers. The rest, as they say, is up to the lawyers…

First, we summarise what happened to Mr. Najafi.

A. The Najafi case

A more recent photo of Mr Najafi

UPDATE: The Saturday Paper has published a detailed account of what happened in the weeks, days and hours that led to Mr Najafi’s death. The account is damning of Serco and tells of the lack of suitable treatment and also how Mr Najafi had been beaten up by other detainees – criminals – in the centre.

Mr Najafi, an Hazara from Afghanistan, arrived at Christmas Island four years ago by boat after his family was killed by the Taliban. For the last three years he has been held in detention at the Yongah Hill detention centre, Western Australia. A detainee at the centre who knew him said he had suffered mental health problems after the death of his father. The same detainee said that the only treatment offered for mental health at the centre was medication that made them “sleep all the time”.

Last Friday Mr Najafi died of a heart attack, which was unusual for his age. When he had asked for help, he was only offered standard pain killers. An ambulance was requested too, but refused. Fellow detainees at Yongah Hill are reported to have said that Mr Najafi had been complaining about a heart condition for two weeks. “They did not let him see a doctor … only gave him Panadol,” said one. “He said he couldn’t breathe … they let him die. Everyone is sad, very sad,”.

Ian Rintoul from the Refugee Action Coalition said that Mr Najafi’s death highlighted the neglect and lack of medical care in the detention centre. “There is no excuse for keeping someone in detention for three years,” he said. “If he had been in the community, he would more likely still be alive.”

B. The detention centres managers

The biggest player in detention centre management in Australia is Serco, a multinational company that has been hit by many scandals (including fraud in the UK). Other players include Transfield (which manage the detention centres on Manus Island and Nauru) and Wilson Security (which is sub-contracted to Transfield). IHMS (International Health & Medical Services) operate the clinics in all the refugee detention centres on the Australian mainland as well as offshore (Manus Island, Nauru and Christmas Island). According to the Guardian Australia IHMS Australia is owned by International SOS (Australasia) which in turn is “wholly owned by a Singaporean company, AEA International Holdings. This is touted by International SOS as its ultimately holding company, and the group of other affiliated companies; Aspire Lifestyles, MedAire, Response Services Australia and RMSI… By far the three biggest shareholders are another entity named International SOS Holdings, based in Singapore, Forte Group Limited, a company based in the British Virgin Islands, and AV Holdings International, a Belgium company.”

C. Australia’s ‘border’ and gulag deaths/injuries

To see a list of all asylum-seeker deaths that have happened in Australia’s refugee detention centres, or at sea on the way to Australia, or in transit, click here.

An appendix (end of article) provides four tables (courtesy of Paul Farrell of the Guardian Australia) from the Australian Government agency, Comcare, that include statistics and other details of deaths/injuries of asylum-seekers in all Australian (mainland and offshore) detention centres for the period of one year from September 2013.

To see a separate set of statistics regarding deaths at sea of asylum-seekers in or near Australian waters, click here.

D. Corporate manslaughter and Australian law

No company is immune from accountability. Every death or injury (major or minor) that occurs in detention facilities needs proper, independent and verifiable investigation. Medical reports, coroner’s reports, police reports, etc should all be mandatory. Where failings have been found, these should be publicised. Personal failings should see staff dismissed; company failings should see contracts terminated. Where individual managers are shown to have acted with neglect and, consequently, persons have suffered injury, then the perpetrators(s) should be prosecuted and the victim(s) compensated. And where negligence has led to a death, then if this amounts to perceived corporate manslaughter the manager(s) involved should be prosecuted.

All the above ought to be standard procedure and the contingent processes open to public scrutiny. The detention centre industry should not be seen or permitted to be an exception to these standards. As long as these standards are not met, then the legal system in Australia has failed and its practitioners can be accused of complicity in that failure.

Contrary to popular perception, the prosecution of managers of companies believed to have been complicit in corporate manslaughter, or related crimes, is not contingent on the initiative of the police – state or federal – but can, if need be, be initiated privately or by an NGO or as a class action.

Currently, corporate manslaughter in Australia comes under the Commonwealth Criminal Code (and states are developing additional legislation parallel to this code).

According to Andy Blunden in Australianislation) Law in the Commonwealth Jurisdiction:

“The Commonwealth Criminal Code Act (1995) , which came into force in 1998, is the relevant Commonwealth legislation for this question. The Act covers only criminal acts which are crimes under Commonwealth law (which does not include Health & Safety legislation, for example, or homicide or manslaughter). So until the States legislate equivalents of this Commonwealth Act in their own jurisdictions, it will be the common law and State statutes which determine who is responsible for a death resulting from breaches of OH&S legislation or other corporate actions, other than Terrorism. But this Commonwealth Act introduced into Australian law the important concept of “corporate culture.” Part 2.5 – Corporate criminal responsibility (Division 12) is the relevant section.“

Here is that section:

12.1 General principles

(1) This Code applies to bodies corporate in the same way as it applies to individuals. It so applies with such modifications as are set out in this Part, and with such other modifications as are made necessary by the fact that criminal liability is being imposed on bodies corporate rather than individuals.

(2) A body corporate may be found guilty of any offence, including one punishable by imprisonment. Note: Section 4B of the Crimes Act 1914 enables a fine to be imposed for offences that only specify imprisonment as a penalty.

12.2 Physical elements

If a physical element of an offence is committed by an employee, agent or officer of a body corporate acting within the actual or apparent scope of his or her employment, or within his or her actual or apparent authority, the physical element must also be attributed to the body corporate.

12.3 Fault elements other than negligence

(1) If intention, knowledge or recklessness is a fault element in relation to a physical element of an offence, that fault element must be attributed to a body corporate that expressly, tacitly or impliedly authorised or permitted the commission of the offence.(2)The means by which such an authorisation or permission may be established include:

(a) proving that the body corporate’s board of directors intentionally, knowingly or recklessly carried out the relevant conduct, or expressly, tacitly or impliedly authorised or permitted the commission of the offence; or

(b) proving that a high managerial agent of the body corporate intentionally, knowingly or recklessly engaged in the relevant conduct, or expressly, tacitly or impliedly authorised or permitted the commission of the offence; or

(c) proving that a corporate culture existed within the body corporate that directed, encouraged, tolerated or led to non-compliance with the relevant provision; or

(d) proving that the body corporate failed to create and maintain a corporate culture that required compliance with the relevant provision.

(3) Paragraph (2)(b) does not apply if the body corporate proves that it exercised due diligence to prevent the conduct, or the authorisation or permission.

(4) Factors relevant to the application of paragraph (2)(c) or (d) include:

(a) whether authority to commit an offence of the same or a similar character had been given by a high managerial agent of the body corporate; and

(b) whether the employee, agent or officer of the body corporate who committed the offence believed on reasonable grounds, or entertained a reasonable expectation, that a high managerial agent of the body corporate would have authorised or permitted the commission of the offence

(5) If recklessness is not a fault element in relation to a physical element of an offence, subsection (2) does not enable the fault element to be proved by proving that the board of directors, or a high managerial agent, of the body corporate recklessly engaged in the conduct or recklessly authorised or permitted the commission of the offence.

(6) In this section:

“board of directors” means the body (by whatever name called) exercising the executive authority of the body corporate.

“corporate culture” means an attitude, policy, rule, course of conduct or practice existing within the body corporate generally or in the part of the body corporate in which the relevant activities takes place.

“high managerial agent” means an employee, agent or officer of the body corporate with duties of such responsibility that his or her conduct may fairly be assumed to represent the body corporate’s policy.

Back to Blunden (comments on above):

12.1 applies the principle under which a corporation is treated as if it were a person, but when it says “any offence” the scope of crimes covered is that of the Commonwealth jurisdiction.

12.2 means that if someone commits a crime in the course of their employment, they may be personally responsible, but so may the corporation, as a legal entity. This raises the issue of how it can be determined whether their action was really in pursuit of the policies and internal constitution of the corporation. If the actor was themself a “high managerial agent” as mentioned in 12.3(6), then liability is not vicarious, and the corporation is directly liable, in addition to the individual. Otherwise, as delineated in 12.3, the corporate body which authorised or permitted that act is at fault. This may be because the agent “believed on reasonable grounds, or entertained a reasonable expectation, that a high managerial agent of the body corporate would have authorised or permitted the commission of the offence” or – and this crucial – that “that a corporate culture existed within the body corporate that directed, encouraged, tolerated or led to non-compliance with the relevant provision; or … that the body corporate failed to create and maintain a corporate culture that required compliance with the relevant provision.”

Appendix: Tables of death/injuries