Melissa Parke (Fremantle, Australian Labor Party, Shadow Assistant Minister for Health) Share this | Hansard source

I have deep concerns about this bill, the Migration Amendment (Maintaining the Good Order of Immigration Detention Facilities) Bill 2015, which is yet another instalment in the government's efforts to become less accountable and to make asylum seekers' lives even more difficult and more precarious. The bill is being promoted by the government as a simple codification of the powers to use force that officers working in detention centres already have under the common law, in order to provide certainty around the scope of the power. We are thereby encouraged to see these powers, and the bar to litigation relating to the exercise of these powers, as unremarkable—as akin to the powers and protections afforded to police and prison officers. But this is not true, as I will discuss shortly.

In his second reading speech, the minister referred to the Hawke-Williams report of August 2011 into incidents at the Christmas Island detention centre and Villawood detention centre in his justification for introducing the bill. Yet, as noted by the Human Rights Commission, the Hawke-Williams report did not say it was necessary that Serco be given greater powers to use force. As also observed by the Parliamentary Joint Committee on Human Rights, the Hawke-Williams report contains no reference to the deficiencies of the common law regarding the use of force and it does not recommend the creation of a statutory use-of-force power for security guards in detention facilities. The bill permits guards to use reasonable force in a range of circumstances, including preventing action that disturbs the good order, peace or security of the facility. This provides an extremely broad authorisation and would seem to include the use of force as a pre-emptive measure and in situations of peaceful protest. The explanatory memorandum refers to the 'deterrence of disturbances'. The joint human rights committee noted that analogous state and territory legislation governing the use of force in prisons generally limits the use of force to preventing or quelling a riot or disturbance. The committee further observed that the bill lacks a number of safeguards that apply to analogous state and territory legislation governing the use of force in prisons. For example, there is no requirement that: force be used only as a last resort; force should be used only if the purposes to be achieved cannot be achieved in a manner not requiring the use of force; the infliction of injuries is to be avoided if possible; the use of force to protect a person from threat of harm applies only to an imminent threat; the use of force to prevent a person from damaging, destroying or interfering with property is permissible only if a person is in the process of damaging the property and, if not, there must be a reasonable apprehension of an immediate attack; and the use of force be limited to situations where the officer cannot otherwise protect him- or herself, or others, from harm. The human rights committee was scathing regarding the fact that guidance as to what constitutes reasonable force under the bill is to be set out in policy rather than legislation, and it observed that 'this is insufficient to provide a justification for limitations on human rights'.

The bill not only increases the power of guards to use force but also allows them to use such force as they subjectively believe is necessary, while police and correctional officers in prisons are generally held to an objective standard when assessing the reasonableness of their use of force. The Andrew and Renata Kaldor Centre for International Refugee Law and the Gilbert+Tobin Centre of Public Law at the University of New South Wales have stated:

The Explanatory Memorandum provides no compelling reason as to why a subjective, less well-defined test for when force may be used is appropriate in this context. Indeed, the broad range of instances to which the use of force applies provides a compelling reason as to why the test ought to be confined to cases where the use of force is objectively found to be reasonable and necessary in the circumstances.

The potential use of force on children was noted by the Human Rights Commission and other submitters to the Senate Legal and Constitutional Affairs Committee inquiry, including UNICEF Australia, which is particularly concerned that the bill does not provide guidance nor allow for consideration of the unique vulnerability of children in places of immigration detention. UNICEF observed that the forgotten children report of 2014, the UNHCR Beyond Detention 2014-19 strategy and a strong international evidence base indicate that locked detention settings cause serious harm to children at every stage of their development and maturation. In its submission, the Asylum Seeker Resource Centre very reasonably commented:

Given that there are numerous, very serious reported incidents where officers have abused their existing powers and used excessive force against children, women and men in detention, a broadening of powers with limited to no liability or oversight is greatly concerning and potentially very dangerous.

The bill not only provides immunity from current and future legal proceedings for guards who use excessive force in good faith but also removes any liability of the Commonwealth, which is not the case with police officers. This bar appears to place an unacceptable limit on what should be the right to an effective remedy by a person who is mistreated. I note that the Parliamentary Joint Committee on Human Rights, in its assessment of this aspect of the bill, believed that it 'removes the opportunity for an affected person to seek compensation in a broad range of circumstances.' Thus we see detention centre guards being given greater powers and protection than even police officers yet there is less oversight and accountability.

Professor Gillian Triggs, of the Human Rights Commission, noted in her oral submission:

Australia is of course bound by the International Covenant on Civil and Political Rights, which requires a remedy for those whose rights have been violated. If the use of force is excessive, the person responsible should be accountable before the courts. The bill's proposed section 197BF gives immunity to contract guards, even if the force used is excessive, so long as that force is used in good faith. I think we all understand that it is almost impossible to demonstrate bad faith.

I strongly urge that this proposal be revisited to ensure that immunity from prosecution be available only when the force used is within the statutory power and is not excessive based on an objective, not a hybrid or subjective, standard.

In its written submission the Human Rights Commission notes:

Further, there does not appear to be any justification for providing a separate immunity to the Commonwealth. The justification given by the Government for providing an immunity to authorised officers is to remove any reluctance they may have to using reasonable force to the extent they are authorised to do so. There does not appear to be any justification for providing an immunity that extends beyond the authorised officers who are exercising the relevant power.

Under the bill, the minister is required to set out in writing the training and qualifications that a guard must have to be considered 'authorised', but there is no detail as to what this would entail. The statement of compatibility with human rights suggests that the required training may include a Certificate II in Security Operations, or equivalent, within six months of starting work. The Joint Human Rights Committee stated:

It is not clear to the committee that this level of training, which is the same as is required by crowd controllers and security guards, is sufficient to ensure that IDSP officers exercise the proposed use of force powers compatibly with the right to life.

Clearly, an adequate level of training should be mandated in the bill or regulations for persons being granted the wide discretionary powers to use force under this bill. During the hearings conducted into the bill by the Senate Legal and Constitutional Affairs Committee, the department indicated in answer to questions put by Senator Sue Lines that the minister's training requirements would probably be conveyed to private security contractors by letter and that these letters would be commercial-in-confidence and thus not be subject to public, parliamentary or independent expert scrutiny.

The Australian Churches Refugee Taskforce has called for the training and qualification requirements to be legislated and analogous to relevant state and territory guidelines for the training and qualifications of those employed in corrective services. It also recommends that private contractors 'be regularly subjected to external and independent monitoring and oversight to ensure that Australia's international human rights obligations are being met.' The taskforce also challenges the adequacy of the complaints mechanism in the bill whereby complaints can be made to the secretary of the department, who has the sole discretion to decide whether and how to investigate them. The secretary may refer complaints to the Ombudsman but cannot provide any other remedy.

I note the Commonwealth Ombudsman's submission in September 2011 to the Joint Select Committee on Australia's Immigration Detention Network stated that:

The Ombudsman is also concerned about the use of force in detention centres and suggests that better monitoring and governance is required to ensure consistency, competency and integrity of the reporting of incidents as well as ongoing training to build the capacity for de-escalation of situations which lead to unrest in detention centres.

UNICEF Australia in its submission also points to a 2013 monitoring report of the Ombudsman which noted the high level of vulnerability of detainees and the high degree of control exercised over detainees by the department, which creates a situation of 'special dependence' and therefore the department has both 'a comprehensive duty of care for detainees' and 'a positive duty to take action to prevent harm from occurring'. UNICEF Australia particularly recommends, among other measures, the mandatory referral of complaints regarding the use of force against children to the Commonwealth Ombudsman.

The lack of oversight and accountability in a bill conferring broad powers upon barely trained guards to use force is extraordinary and indefensible, and I agree with those who question whether this is compatible with Australia's international law obligations to investigate and prosecute acts of torture and cruel, inhuman or degrading treatment and to provide effective remedies for violations of human rights. I also agree with those who contend that rather than introducing further punitive measures against asylum seekers, the government should be addressing the real problems in Australia's immigration detention system: the length and arbitrariness of time people are being held, overcrowding, poor living conditions, a lack of information about cases and a lack of access to legal assistance through the refugee determination process.

The Australian government must also respond meaningfully to the recent The forgotten children report of the Human Rights Commission into the abuse of children at Manus Island and Nauru, the inquiry into the circumstances of the death of Reza Berati—which goes squarely to the question of how the use of force is regulated and constrained—and the Moss review into sexual abuse at the Nauru detention centre. I note the summary by the Australian Lawyers Alliance, which states:

The nature of allegations raised in the Moss Review of sexual harassment, rape, trading sexual favours for marijuana and cigarettes and children being touched inappropriately, if proven, show that the Commonwealth has failed in its duty to take reasonable care of asylums seekers.

It is hard to consider a bill that puts forward greater powers for security guards to use force with little accountability when it appears that nothing meaningful is being done to address the serious issues that have already been reported in onshore and offshore facilities in terms of rape, prostitution, the sexual abuse of children and violence towards asylum seekers.

As I have argued before, the best protection and guarantee against abuse, against unreasonable use of force, and against other human rights violations would be the provision of properly framed independent oversight, both in Australian immigration detention facilities and, as a matter of urgency, in the offshore detention centres. In the absence of such oversight and supervision, the centres should be closed.

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