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

As I outlined earlier, Labor believes that the power to use reasonable force is too subjective and too broad as it is currently defined in this bill. Labor supports the view of the Human Rights Commission that the threshold for determining when force may be used is subjective and lower than that which currently applies to the Australian Federal Police. We believe it is inappropriate for the use-of-force power in a detention centre facility to be more readily applied than is possible in a police detention environment. I am therefore proposing to amend the bill to include an objective test of reasonableness and necessity for the use of force. In respect of amendment (4), the bill currently includes provisions to prevent the use of reasonable force in specific circumstances; however, similar to the amendments outlined above, Labor believes the legislation should include an objective test of reasonableness and necessity in regard to the limitations of the use of force.

In respect of amendment (5), Labor is also concerned that many of the most significant limits on the use of force are referred to in the explanatory memorandum as matters that the Department of Immigration and Border Protection will include in administrative policies and procedures and not in the legislation itself. Labor supports the recommendation of the Human Rights Commission that these limits on the use of force, particularly those in regard to excessive force, be included in the legislation. Labor is also seeking to amend the legislation to specifically address the use of reasonable force against children in detention. Specifically, a new provision should be added to provide that an authorised officer must not exercise the power to use force in relation to a minor unless: all alternatives to the use of force, including negotiation and de-escalation techniques, have been attempted and failed; where possible, the proposed use of force has been raised with the minor's parent or guardian and the parent or guardian has been given sufficient opportunity to both speak with the minor and to make submissions to the authorised officer about the use of force; authorisation for the particular use of force has been sought and obtained from the director of the facility; and, where it is not possible to discuss the proposed use of force with the minor's parent or guardian in advance, force is only then used where there is an unacceptable risk of escape or immediate harm to the child or others.

Labor also has concerns regarding the power to use force to move children and adults in immigration detention facilities. Therefore, I am moving an amendment to introduce a new subsection which clarifies that when an authorised officer intends to use force in order to move a detainee within an immigration detention facility, this must be preceded by: a request to the detainee to move, with the assistance of an interpreter if required; the detainee having been given a reasonable opportunity to move voluntarily; and all reasonable alternatives to the use of force being exhausted, prior to force being used to move a detainee.

In respect of amendments (1), (6) and (8), as noted earlier, this bill will put in place a statutory complaints mechanism. As I also noted, a number of stakeholders have raised concerns regarding the fact that the departmental secretary will have the discretion to conduct the investigation in any way that he or she considers appropriate, and to decide not to investigate the complaint at all if certain conditions are met.

Furthermore, the bill does not specify what the outcome of these investigations may be, either in terms of practical remedies for complainants or disciplinary consequences for authorised officers and service providers. There is also no proposal for there to be any independent oversight of the use of force in detention facilities or of the complaints process itself. I am therefore proposing amendments which specify that the secretary must notify the Commonwealth Ombudsman in writing of the receipt of the complaint. In addition, the amendments give the Commonwealth Ombudsman the power to review the administration of the secretary's investigation of complaints, and to report to parliament on an annual basis about the comprehensiveness and adequacy of the processes used by the secretary.

In respect of amendments (9) and (10), Labor has serious concerns regarding section 197BF of the bill, which will place a partial bar on legal proceedings against the Commonwealth in relation to the use of force. The Human Rights Commission shares these concerns and notes that the existing provision does not make it sufficiently clear that there are two criteria that must be satisfied in order for immunity to be obtained—namely, that the use of force by an authorised officer must not exceed what is authorised by the bill and that the power to use force must be exercised in good faith.

The Human Rights Commission also noted there is no real justification for the Commonwealth to have a separate immunity from litigation over and above that provided to the authorised officer. The proposed amendment to subsection 197BF(1) and the deletion of subsection 197BF(4) give effect to these concerns.

The final amendment, amendment (11), will amend the Ombudsman Act to reflect the earlier changes which give the Commonwealth Ombudsman powers with respect to the complaints mechanism. With these comments, I commend these amendments to the House.

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