Federal regulator inspecting alleged medical neglect of 3-year-old Tharnicaa Murugappan

Media Release

27 August 2021

Refugee activist groups welcome an inspection by Comcare, the federal work health and safety regulator, into the alleged neglect of Tharnicaa Murugappan in Australian immigration detention during her illness in late May-early June this year.

However, groups say there must also be a full and thorough investigation of the circumstances that led to the three-year-old girl waiting 10 days for proper medical treatment before being air-lifted from a remote Christmas Island detention centre for emergency care in a Perth Hospital.

In correspondence, responding to refugee activist Max Costello’s 30 June request for an investigation, Comcare said there is “an open inspection” into concerns over the medical care of Tharnicaa.

In separate correspondence, Comcare clarified that, while the inspection’s aim is to monitor compliance with the Work Health and Safety Act 2011 (WHS Act), an investigation would involve gathering evidence for a possibility of judicial proceedings.

In late May, Tharnicaa began suffering from a fever, flu-like symptoms and abdominal issues. It was not until 6 June that she was taken to the local hospital, where a blood sample was taken. The next day, an emergency air ambulance flight took Tharnicaa, and her mother Priya, to Perth. She was treated for respiratory symptoms and an infection. She also required urgent dental surgery. She continues to receive ongoing mental health treatment and her physical health continues to be monitored.

Comcare has announced it is inspecting whether the Department of Home Affairs (DHA) complied with its duties under the WHS Act to pro-actively safeguard Tharnicaa’s health. The Commonwealth government contracts International Health and Medical Services (IHMS) to provide care at immigration detention facilities (IDFs).

A separate Comcare investigation into the 2019 suicide death of a detainee at Sydney’s Villawood IDF led to criminal charges being laid against DHA and IHMS, in March this year, alleging breaches of WHS Act health care duties.

Max Costello LLM, a member of Refugee Action Collective Victoria said: “As a former prosecuting solicitor (now retired) for WorkSafe Victoria, I think this inspection/investigation by Comcare is significant for several reasons.”

“First, it shows – as do the March charges – that there’s a health and safety law covering Commonwealth workplaces, not just those covered by the (very similar) WHS or OHS laws of the States and Territories.”

“Secondly, it shows that health and safety law aims to protect not just workers, but also “other persons” at workplaces. In most workplaces, those “other persons” are clients or customers, but in ‘custody or care accommodation’ workplaces, such as IDFs and aged care homes, they are (respectively) the detainees and the residents.”

“Thirdly, the March charges and the ‘Tharnicaa investigation’ shine a new legal light on the seemingly remorseless harshness experienced by many detainees and ex-detainees.”

“For decades, the focus of lawyers (nearly all acting pro bono) and refugee advocates has been almost entirely on alleged breaches of civil law – such as breaches of international human rights instruments ratified by Australia, and breaches of the duty of care at common law (judge-made law). But there is now a further focus – tempered of course by the presumption of innocence to which any accused party is entitled – on whether the alleged health neglect of an IDF detainee might involve criminal law offences.”

Angela Fredericks, organiser of the  Home to Bilo campaign said: “We welcome any investigation into the circumstances that led to Tharni’s illness, and the numerous alleged instances in which Priya and Nades’s concerns as parents of a sick girl were ignored or dismissed by staff. I know if they were home in Biloela they could have been free to seek the medical help that Tharni needed, as any parent would do.”

Eminent barrister Robert Richter QC said: “Several refugee advocates including Max Costello have campaigned for years to secure an investigation into criminal breaches of Federal workplace health and safety obligations by the responsible Federal Agencies. I have had the privilege of supporting him over a period of years.”

“Any proper investigation of the appalling treatment meted out to the Bilo family and a large number of other people seeking asylum is welcomed and needs to attribute blame where it must reside.”

Jana Favero, Director of Advocacy and Campaigns, Asylum Seeker Resource Centre said: “The inspection by Comcare is a great first step. The Government must be held accountable for the treatment of people in the immigration detention system. Nades, Priya, Tharni and Kopika should be home in Biloela and people seeking asylum should not be subjected to the current harmful and arbitrary immigration regime.”