Richard Marles (Corio, Australian Labor Party, Shadow Minister for Immigration and Border Protection) Share this | Link to 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—

Rob Mitchell (McEwen, Australian Labor Party) Share this | Link to this | Hansard source

Order! Could those leaving the chamber do so quietly, please.

Richard Marles (Corio, Australian Labor Party, Shadow Minister for Immigration and Border Protection) Share this | Link to 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.

Peter Dutton (Dickson, Liberal Party, Minister for Immigration and Border Protection) Share this | Link to this | Hansard source

The government obviously opposes these amendments in toto, and the reason is quite simple. I think this is a Labor-Greens stunt which is not becoming of the shadow minister. The shadow minister tries to have a sensible approach to these matters but is completely and utterly deviated by the Left within his own party. They are in some sort of arms race with the Greens to try to be further to the left when it comes to these very serious matters.

This government made it very clear that we would stop boats and we have done that. During Labor's period in government, 52,000 people came on 821 boats. Labor completely lost control of border security in this country. There is no question about that at all. In 2011, we saw the result of the pressure of those people arriving within the detention centre network when serious riots took place at two centres in particular. People were flowing in across our borders with no control by the then government and it resulted in this sort of action taking place within the detention centre network.

This government have stopped the boats, we have closed down 13 detention centres, we have reduced the number of children in detention centres from a peak of 1,992 when Labor was in government down to 100—and we want to reduce that number even more. At the same time, we have made a very clear point to those people within detention centres that we will not tolerate the sort of behaviour that we saw in 2011. I will not tolerate people being assaulted within detention centres.

Ms Butler interjecting—

Craig Kelly (Hughes, Liberal Party) Share this | Link to this | Hansard source

Order! The member for Griffith should be in her seat.

Peter Dutton (Dickson, Liberal Party, Minister for Immigration and Border Protection) Share this | Link to this | Hansard source

I will not tolerate the staff within those detention centres being assaulted, and I will not tolerate Commonwealth property being destroyed within those centres. Out of the 2011 riots, Labor commissioned a review into their own failings within the detention centre network. The review came back with recommendations which we have implemented in this bill. In this bill we codify what is reasonable force to be used by those officers within those facilities—not only for their own protection but also, most importantly, for the protection of the people within those centres. Labor commissioned the report into their own failings. The review came back with recommendations which have been accepted by us—and, I might say, accepted by Labor up until this point.

I received no notification of these amendments before coming into this chamber. I have received no notification from the shadow minister that he had any problem with this bill. I had no notification from the shadow minister that he was going to cosy up beside the Greens and the member for Indi in relation to this matter. I had no prior notice whatsoever. Is this a genuine attempt to try to improve the bill? Of course it is not, because the shadow minister and the Labor Party had indicated their support for the bill. What has happened? The Labor Party have been taken over internally by the left wing of their party. We hear a couple of voices within this chamber but there are others out there. I feel for the shadow minister, because he is trying, I think, in a genuine way to implement sensible policy. But he is just on the eve of his greatest test. The Labor Party are going to have a very important discussion about this, and let us see whether or not they are serious when it comes to these border protection management issues. If you start the boats up again, the detention centres will re-open, the kids will go back into detention and we will have the same riots that we saw in 2011 when Labor lost control of the detention centre network. We are not going to go back to those bad days. We will not allow the boats to restart—

Ms Butler interjecting—

Craig Kelly (Hughes, Liberal Party) Share this | Link to this | Hansard source

Order, order! The member for Griffith should not continually interject.

Peter Dutton (Dickson, Liberal Party, Minister for Immigration and Border Protection) Share this | Link to this | Hansard source

We will not allow the riots to recommence within the detention centres, and we are not going to give ground to the Labor, Greens and member for Indi movement. We are not going to surrender to people smugglers, who are lurking in the shadows right now waiting for the Labor Party to be successful at the next election so that boats can recommence and the riots can recommence within detention centres. We will not allow the Left of the Labor Party to dominate policy in this country. We will stop the boats into the future. If the Labor Party are re-elected, they will allow the boats to recommence.

Craig Kelly (Hughes, Liberal Party) Share this | Link to this | Hansard source

The question is that opposition amendments (1) to (11) be agreed to.

Craig Kelly (Hughes, Liberal Party) Share this | Link to this | Hansard source

The question now is that the bill be agreed to.