Richard Marles (Corio, Australian Labor Party, Shadow Minister for Immigration and Border Protection) Share this | Hansard source

by leave—I move opposition amendments (1) to (11), as circulated in my name, together:

(1) Schedule 1, item 5, page 4 (after line 1), after the heading to Division 7B, insert:

Subdivision A—Maintaining the good order etc. of immigration detention facilities

(2) Schedule 1, item 5, page 4 (lines 4 to 6), omit "such reasonable force against any person or thing, as the authorised officer reasonably believes is necessary,", substitute "such force against any person or thing as is necessary and reasonable".

(3) Schedule 1, item 5, page 4 (lines 11 to 13), omit "such reasonable force as the authorised officer reasonably believes is necessary under that subsection", substitute "under that subsection such force as is necessary and reasonable".

(4) Schedule 1, item 5, page 5 (lines 7 and 8), omit "the authorised officer reasonably believes is necessary", substitute "is necessary and reasonable".

(5) Schedule 1, item 5, page 5 (after line 14), after subsection (5), insert:

  (5A) An authorised officer must not use force against a person under subsection (1) except:

  (a) as a measure of last resort, taking into account other available alternatives such as negotiation and de-escalation; and

  (b) for the shortest amount of time that is necessary.

  (5B) An authorised officer must not use force against a person under subsection (1):

  (a) in a way that amounts to:

     (i) cruel, inhuman or degrading treatment; or

     (ii) punishment; or

  (b) if the force is beyond that which is necessary and reasonablein the circumstances, including:

     (i) force where none is needed;

     (ii) more force than is needed;

     (iii) force, or a level of force, that continues after the necessity for it has ended;

     (iv) a knowingly wrongful use of force.

  (5C) An authorised officer must not exercise the power under subsection (1) to move a detainee within an immigration detention facility unless:

  (a) an authorised officer has requested the detainee to move to another part of the facility; and

  (b) the request is made, through an interpreter if necessary, in a language (including sign language or braille) in which the detainee is able to communicate with reasonable fluency; and

  (c) the detainee has been given a reasonable opportunity to comply with the request; and

  (d) all reasonable measures to move the detainee without the use of force have been attempted and have failed.

  (5D) An authorised officer must not use force under subsection (1) against a minor unless:

  (a) all reasonable alternatives to the use of force, including negotiation and de-escalation, have been attempted and have failed; and

  (b) either subsection (5E) has been complied with or there is an unacceptable risk of the minor:

     (i) escaping from the immigration detention facility; or

     (ii) causing immediate self-harm or harm to another person (including the authorised officer).

  (5E) This subsection is complied with in relation to a particular use of force if:

  (a) an authorised officer has:

     (i) raised the proposed use of force with a parent or guardian of the minor; and

     (ii) given the parent or guardian a reasonable opportunity to speak with the minor, and to make submissions to the authorised officer, about the proposed use of force; and

  (b) the person in control of the immigration detention facility (however described) has authorised the particular use of force.

(6) Schedule 1, item 5, page 5 (after line 28), after section 197BA, insert:

Subdivision B—Accountability

(7) Schedule 1, item 5, page 6 (after line 9), at the end of section 197BB, add:

(5) The Secretary must notify the Ombudsman in writing of the receipt of the complaint.

(8) Schedule 1, item 5, page 8 (after line 3), after section 197BE, insert:

197BEA Record -keeping

(1) The Secretary must ensure that appropriate records are kept of the following:

  (a) complaints made under section 197BB;

  (b) investigations of such complaints;

  (c) decisions to refer, or not to refer, such complaints to the Ombudsman;

  (d) decisions under section 197BD or 197BE to not investigate, or to not investigate further, such complaints.

(2) Without limiting section 197BED, the Ombudsman is entitled to have access to the records kept under this section for the purposes of performing the Ombudsman's functions.

197BEB Annual reviews by Ombudsman

(1) For the purposes of this section, the review periods are:

  (a) the period of 12 months commencing on the day on which Schedule 1 to the Migration Amendment (Maintaining the Good Order of Immigration Detention Facilities) Act 2015 commences; and

  (b) each succeeding period of 12 months.

(2) At least once in each review period, the Ombudsman must, for the purposes of reviewing the administration of this Subdivision during that period, inspect the records kept under section 197BEB relating to complaints made under section 197BB that have been, or are being, dealt with under section 197BC, 197BD or 197BE during that period.

197BEC Ad hoc reviews by Ombudsman

     The Ombudsman may, at any time, inspect records kept under section 197BEB for the purposes of reviewing the administration of this Subdivision.

197BED Secretary to provide information and access to documents

     For the purposes of a review conducted under section 197BEB or 197BEC, the Ombudsman may require the Secretary to give the Ombudsman the information, and the access to documents, that the Ombudsman requests.

197BEE Annual reports by Ombudsman

(1) The Ombudsman must, as soon as practicable after 30 June each year, prepare a report of the Ombudsman's work and activities under this Subdivision during the preceding 12 months and give copies of the report to the President of the Senate and the Speaker of the House of Representatives for presentation to the Senate and the House of Representatives, respectively.

(2) The report must include comments as to the comprehensiveness and adequacy of the administration of matters under this Subdivision.

197BEF Functions of Ombudsman

     The Ombudsman's functions include the functions conferred on the Ombudsman by this Subdivision.

Subdivision C—Other matters

(9) Schedule 1, item 5, page 8 (lines 6 to 8), omit subsection 197BF(1), substitute:

(1) No proceedings may be instituted or continued in any court against an authorised officer in relation to an exercise of power under section 197BA if the power was exercised:

  (a) in good faith; and

  (b) in accordance with that section.

(10) Schedule 1, item 5, page 8 (lines 13 to 16), omit subsection 197BF(4).

(11) Schedule 1, page 8 (after line 21), at the end of the Schedule, add:

Ombudsman Act 1976

6 At the end of section 6

  Add:

(22) If the Ombudsman forms the opinion:

  (a) that a complaint relates to an authorised officer's exercise of power under section 197BA of the Migration Act 1958; and

  (b) that the complaint could be more conveniently or effectively dealt with under section 197BC of the Migration Act 1958 by the Secretary (the Immigration Secretary) of the Department responsible for administering that Act;

the Ombudsman may decide not to investigate the complaint, or not to investigate the complaint further, as the case may be, and to transfer the complaint to the Immigration Secretary.

(23) If the Ombudsman makes a decision under subsection (22):

  (a) the Ombudsman must:

     (i) transfer the complaint to the Immigration Secretary as soon as is reasonably practicable; and

     (ii) give the Immigration Secretary any information or documents relating to the complaint that are in the possession, or under the control, of the Ombudsman; and

     (iii) as soon as is reasonably practicable, give the complainant written notice that the complaint has been transferred to the Immigration Secretary; and

  (b) the complaint is taken to be a complaint to the Immigration Secretary made under section 197BB of the Migration Act 1958.

7 Subsection 33(1)

  Omit all the words after "power or authority", substitute:

     conferred by:

  (a) this Act; or

  (b) Division 7 of Part V of the Australian Federal Police Act 1979; or

  (c) Subdivision B of Division 7A of Part 2 of the Migration Act 1958.

8 At the end of subsection 34(1)

  Add:

  ; and (d) all or any of his or her powers under Subdivision B of Division 7A of Part 2 of the Migration Act 1958.

9 Subsections 35(2) and (8)

  After "Australian Federal Police Act 1979", insert "or Subdivision B of Division 7A of Part 2 of the Migration Act 1958".

In respect of amendments 2 and 3 as circulated—

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