Carol Brown (Tasmania, Australian Labor Party, Shadow Parliamentary Secretary for Families and Payments) Share this | Hansard source

I rise to speak on the Migration Amendment (Maintaining the Good Order of Immigration Detention Facilities) Bill 2015. Labor agrees with the intention of this bill but cannot support it in its present form. The idea of statutorily defining and regulating the use of force in detention centres is a laudable one. At present, the use of force by officers in detention centres, whether they are public servants or employees of contracting companies, come under common law. They have the same powers as private citizens do in responding to disturbances. This places the officers in an uncertain and undesirable position because reliance on the common law can make it difficult to decide whether the level of force applied in any particular set of circumstances is reasonable, so clarifying when and how officers are able to use force ought to be an improvement. It should not only reduce the uncertainty but also create a regulatory framework for staff training and qualifications to ensure the safety of officers and detainees.

The bill we have before us; however, does not reduce uncertainty. On the contrary, the power to use force as defined in this bill is too broad and too subjective. This is also the view expressed by the Australian Human Rights Commission and the Australian Law Council in their submissions to the Senate inquiry into the bill. As the commission pointed out, the bill's threshold for determining when force may be used is lower than that which applies to the Australian Federal Police—the AFP.

The commission made nine recommendations for improving the bill, and Labor will move amendments to give effect to those recommendations. The amendments will provide a clear, objective test of reasonableness and necessity for the use of force. We will also move a further amendment requiring all staff and contractors in detention facilities to report instances of child abuse. People working in Australian funded facilities will be required to report instances of child abuse to the Border Force Commissioner, who must notify law enforcement authorities. Failure to report abuse will be a criminal offence. If our amendments do not pass, we will be unable to support the bill.

We also support the commission's recommendation that the government clarify whether this bill is intended to allow employees of contracted service providers to use lethal force. If so, the government should explain what limits and controls will be put in place to protect life as far as possible.

The bill also creates a statutory complaints mechanism in relation to the use of force. Complaints will be investigated by the Secretary of the Department of Immigration and Border Protection, who may transfer the complaint to another appropriate agency such as the Commonwealth Ombudsman or the Australian Federal Police. Complainants will still have the ability to approach directly other agencies, including the Australian Human Rights Commission, and the non-government organisations such as the Red Cross. Labor is concerned; however, that when the secretary conducts an investigation it can be done in any way he or she deems appropriate. Under certain circumstances the secretary may decide not to investigate the complaint at all. A further problem is the bill does not specify outcomes for the complaints mechanism either in practical remedies for complainants or in disciplinary consequences for authorised officers and service providers. Nor is there a proposal for independent oversight of the use of force in detention or of the complaints mechanism.

Labor is concerned that the bill provides the Commonwealth and those acting on the Commonwealth's behalf, such as detention centre providers, with immunity from legal action in cases where the use of force is deemed reasonable and exercised in good faith. This goes beyond the existing law regarding police. Individual police officers have protection from legal action, but the Commonwealth remains liable for actions taken by an AFP or Australian Protective Service Offer. The explanatory memorandum to the bill seeks to justify the immunity in this way:

Without at least some degree of this kind of protection, employees of the immigration detention services provider may be reluctant to use reasonable force to protect a person or to contain a disturbance in an immigration detention facility.

The broad immunity granted in this bill appears to be without precedent. As Labor senators noted in their dissenting report to the inquiry, we are not aware of similar provisions in state or territory legislation on the powers of police or correctional service officers.

Associate Professor Gabrielle Appleby of the University of New South Wales law school, told the committee:

… there is no justification for such an unusual protection provision in the context of immigration detention. Other statutes conferring power to use reasonable force provide for personal protections or indemnities for the officers but not the complete immunity we see in this bill.

The Human Rights Commission has commented that the relevant section of the bill does not make clear that there are two criteria that should be satisfied for immunity to be obtained: an officer's use of force must not exceed what has been authorised, and the use of force must be exercised in good faith.

On the latter criterion, Associate Professor Appleby has said that a possible reading of the bill is that the immunity applies even if the level of force exceeds what has been authorised provided it was exercised in good faith:

Certainly, when I initially read the provision, my interpretation was … that, provided that good faith could be shown—and it is very difficult to show bad faith, then the bar on proceedings would apply.

The president of the Human Rights Commission, Professor Gillian Triggs, told the inquiry that the immunity provisions in the bill were potentially in conflict with Australia's international treaty obligations:

… 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.

On the separate immunity the bill provides for the Commonwealth, the Human Rights Commission stated:

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.

Labor agrees. Denying people the right to sue is no small matter. If people believe they have legitimate cause to seek awards for damages, they should get their day in court.

The bill also provides that a person cannot be approved as an authorised officer under the Migration Act 1958 who is able to use reasonable force unless that person has the necessary training and qualifications. However, the necessary training and qualifications are not specified in the bill. In its evidence to the Senate inquiry, the Department of Immigration and Border Protection could not clarify the exact nature of the training requirement. As Labor senators stated in their dissenting report, departmental officers giving evidence to the inquiry 'seemed to be at odds' with what is now required, what would be required in future, who would provide additional training and how it would be provided. The officers were unable to state clearly how the minister's requirements would be conveyed to a private contractor managing a detention centre. They said that this may form part of the contractual arrangements—which would be unlikely to be available for public scrutiny because of commercial-in-confidence provisions. The present situation is that officers are required to obtain a certificate II in security operations, a qualification for workers whose duties involve securing premises. Labor believes this qualification to be inadequate even in the present circumstances of detention centres. It would certainly be inadequate, therefore, for officers who under this bill would be authorised to use force.

This bill undermines its own intention of providing clarity in the use of force by officers in detention centres. It creates difficulties that need not have arisen and diminishes the rights of persons in detention while increasing the rights of those who guard them and are supposed to protect them. It would be unconscionable to pass this bill in its present form.