Worksafe, Warburton Elder, Death in custody rather than workplace related death

Gerry Georgatos indymedia.org.au 2nd May 2011

WorkSafe urged not to drop Mr Ward case

It is arguable whether the 46 year old respected Warburton Elder died within the limitation of a workplace death. The Elder was not an employee of G4S or of the Department of Corrective Services. He was in their duty of care. Limiting his death to a Worksafe investigation in relation to a 'workplace related death' limits liability and culpability. We are limited only to fines and penalties in relation to failsafe protocols being disregarded or breached, and that conduct rather than being criminal was merely misconduct and impropriety and negligence without it being deemed criminal.

If there was no air-conditioning in the transport vehicle on the 42 degrees day this is much more than misconduct. Worksafe has a right to insist that the transport vehicle and the practices of G4S, the drivers, and the Department of Corrective Services do ensure the safe and healthy transport of those detained by the criminal justice system. However Worksafe must insist that this is not a workplace related death and rather that they have taken issue with the occupational and safety breaches alone. The fact is that the Warburton Elder, died by definition, while in custody. This is a death in custody. Therefore the jurisdiction in reference to accountability must return to the appropriate Courts and the DPP does have the capacity, and so does the Government, to lay criminal charges, and not cheat justice and society by limiting this death to a workplace related death. At all times we must qualify the manner and cause of death of the Warburton Elder as a death in custody.

If G4S is prepared to admit it failed to ensure safe systems, and it has apparently pleaded 'guilty', and if the Department of Corrective Services continues to recognise its liability and culpability, hence there does exist, and beyond all reasonable doubt, a habeas corpus/prima facie exploration before the criminal justice system. This is the only mechanism that will ensure that all parties, whether they be police or prison custodial related and the ministries that manage their oversight and acquit their practices shall implement the full weight of the recommedations relating to them from the 338 recommendations accepted by Parliament from the Final Report of the Royal Commission into Aboriginal Deaths in Custody.

If we are misguided into merely a workplace related death and in as such the death in custody is limited to only a statistical notation with the Australian Institute of Criminology then we will have only the piecemeal changes and gains such as the new prisoner transport fleet, some changes to the Bail Act, some Watchhouse protocols, and the odd compensation pay-out. However without justice being served substantively through the criminal justice system we shall not have changes to legislation, processes to ensure accountability and to deter criminal and other negligence by personnel from the police and DCS and from those they contract out to, we shall not diminish zero-tolerance practices and outrageous behaviours and disregard for humanity, and we shall not change arrest practices and refine the warrant for remand. The surface level changes do mean something however it is only the deep routed changes that will bring on justice and eliminate pervasive systemic problems.

Letter to the Editor
Gerry Georgatos
PhD in Law researcher in Australian Deaths in Custody

Gerry Georgatos
BA (Phil), BA (Med), BA (AIS),
G/Dip (Human Rights Ed), MHumRgts, MA (Social Justice)
Managing Consultant - Education, Training, Advocacy
Human Rights Practice - 0430 657 309
PhD (Law) Candidate (Australian Deaths in Custody)
Human Rights Alliance (WA) (Australia) - www.studentswithoutborders.com.au
Ecological, Social Justice, Aboriginal Group (WA) - www.georgatos.com

Comments

Too much racism and not enough duty of care

By Ray Jackson
President of the Indigenous Social Justice Association

once again, gerry has highlighted the ridiculous concept of mr. ward being described as an industrial death. mr. ward just does not fulfil the requirements of being 'an employee.' there is also the not unimportant facts of attempting to lower the costs of compensation to the mr. ward family.

the wa government has already paid out to the family the sum of $300 000. not much for a life ended by incompetence and blind racism. i say blind racism because those involved in this tragic farce would argue that they are not in fact racist but of course they are. they are solidly embedded in the social and historical racism of this country?

firstly the wa government payment is but a pitiful attempt to say that 'we are sorry' but it is not their money they are giving to the family for the death, or murder, of mr. ward. it is taxpayer money, as it always is. billions are given to industry and the multinationals as 'industrial welfare' and they think nothing of it yet they wish to trumpet 'their' largesse to cover up their joint culpability in the death of mr. ward. they, as the government of the day, have the all-encompassing duty of care to assure themselves that those citizens under their care, whether directly or not, are to receive the ultimate care possible, whatever the circumstances. their joint perceived view of hazard management, that we accept the hazard, whatever it be, whilst they 'manage' the outcomes of that hazard, is not acceptable under any circumstances. perhaps if the politicians had to pay the compensation to dic families we would see a real decline in dic across australia.

wa corrective services and g4s are also as culpable as the government in their duty of care to mr. ward.

i can see no other proper reason for these two entities to attempt a 'workplace death' scenario than for economic reasons, to their benefit. how dare they! that transport van was inoperable and should not have been used. the blind racism i mentioned above again settled firmly over this operation, with faulty equipment, as they fully accepted the hazard management concept. did they verbalise that 'it's only a blackfella, lets take the chance.'

maybe not but their mindset is based on their innate racism. the choice is easier to make to use the faulty equipment. would that choice have been made had the detainee been a white man? that question, i would argue, would not have to be asked as the white man would have been bailed. we must not forget the immoral actions of the police in this matter. they strongly argued with the somewhat new justice of the peace that mr. ward must not be bailed but be transported to gaol. they too are very culpable in his death.

the police have a clearly defined duty of care to those they arrest but they continually ignore their responsibilities to the royal commission recommendations and even to their own commissioner's recommendations. why???????

wa corrective services has a duty of care to mr. ward by monitoring their transport contractors, g4s, who also have a duty of care to mr. ward in their own right.

all three groups should come under the scrutiny of a court case/s to ascertain and find their legal levels of culpability and compensation. they must be made responsible for the death of mr. ward.

the task of worksafe australia is to look at the work practices of wa corrective services and g4s and especially the two employees on that occasion. why have they not been charged? do they still work for g4s, perhaps in another state? do they now work 'caring' for our asylum seekers? still so many questions to answer.

too much racism and not enough duty of care.

ray jackson, president of the indigenous social justice association

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