On Christmas Eve, Oscar and Delta compounds – two sections of Australia’s offshore prison on Manus Island – were wrecked after rioting. Wilson Security guards were ejected from the compounds. This was in response to the death of 27 year old Sudanese refugee, Faysal Ishak Ahmed. Two days earlier, Ahmed suffered a fall and blacked out. On Friday 23 December, he was flown to a Brisbane hospital, but it was too late to save him. Documentation (see below) shows the Australian medical staff at the island prison failed to adequately respond to all the warnings. An Iranian journalist, imprisoned on Manus, has accused the clinicians of crimes. So when does death by neglect become corporate manslaughter? (See Appendix, below, for answer.)
(To see more articles by Tom Coburg, click here.)
Ahmed had made numerous requests for medical attention to the prison authorities, but these were rejected. He had also submitted omplaints to the Australian Border Force and to International Health and Medical Services (IHMS is wholly owned by International SOS (Australasia), which is owned by Singapore based AEA International Holdings).
In October 2016 IHMS responded by saying there was nothing wrong with Ahmed (the implication was that he was malingering).
Two days before Ahmed was flown to Australia, 60 Sudanese detainees on Manus wrote a letter to IHMS asking that he receive urgent treatment. This letter was ignored.
Had Mr Ahmed been white, he would not have been treated this way. His death was entirely avoidable and IHMS staff have failed spectacularly in their duty of care.
Also arguably complicit in Ahmed’s death is the minister who is ultimately responsible for Australia’s cruel and illegal offshore processing policy: Peter Dutton.
The UNHCR has made it clear that Australia must no longer flout international conventions in its treatment of refugees. These include:
- The International Covenant on Civil and Political Rights (ICCPR).
- The International Covenant on Economic, Social and Cultural Rights (ICESCR).
- The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT).
- The Convention on the Rights of the Child (CRC).
Meanwhile, Behrouz Boochani, an Iranian journalist, held captive by the Australian Government on Manus, released the following statement:
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.”