Arthur Sinodinos (NSW, Liberal Party) Share this | Hansard source

I rise to speak on the Migration Amendment (Maintaining the Good Order of Immigration Detention Facilities) Bill 2015. I think the very title says it all: maintaining the good order of immigration detention facilities. There are two parts to that. One part is the action that the Commonwealth takes to maintain good order, and the other action, the reciprocal of that, is the behaviour of people who are in these facilities.

Like so many things that governments have to deal with, it is a matter of mutual obligation. The migration amendment bill amends the Migration Act 1958 to support the government's commitment to strong border protection and the establishment of a safe and effective system of immigration detention. We as a government have a responsibility to detainees and other people in our immigration detention facilities to ensure that they are free from harm. We are also responsible to ensure that these facilities themselves are in good order, peaceful and secure. What we are doing is to provide those working in our detention facilities with the tools they need to protect the life, the health and the safety of any person and to maintain the good order, peace and security of an immigration facility. The amendments in this bill address issues arising from incidents at a number of immigration detention facilities, which highlighted uncertainty on the part of the immigration detention service providers as to when they may act when confronted with public order disturbances in immigration detention facilities. It is good that guidance is provided. This cannot simply be a matter of discretion. There have to be guidelines. This uncertainty was considered in the independent review of the incidents at the Christmas Island Immigration Detention Centre and Villawood Immigration Detention Centre in the Hawke-Williams report, conducted by distinguished former public servants Dr Allan Hawke AC and Ms Helen Williams AO in 2011.

The Hawke-Williams report recommended that the Department of Immigration and Border Protection more clearly articulate the responsibility of public order management between the Department of Immigration and Border Protection, the immigration detention service provider, the Australian Federal Police and other police forces who may attend an immigration detention facility, and that would include state police forces. The amendments in this bill provide a legislative framework for the use of reasonable force within immigration detention facilities in Australia. It provides clear authority for use of reasonable force in immigration detention in Australia to protect a person's life, health or safety or maintain the good order, the peace or the security of the facility. Its provision of a legislative framework for the use of reasonable force will provide the immigration detention service provider with the tools needed to provide the first line of response and ensure the operation of the immigration detention network remains viable against a backdrop of a change in the demography of immigration detention facilities.

This was something that was brought home to me a few weeks ago when I visited the Villawood detention centre in Sydney as part of my responsibilities as a senator for New South Wales. I visited there on 6 August. I was taken around along with a number of members of my staff by Tim Fitzgerald, the commander in New South Wales and the ACT, and Brett Totten, the superintendent of the Villawood Immigration Detention Centre. I want to thank both Mr Fitzgerald and Mr Totten for that visit. It lasted a couple of hours. They were both very professional in the way they undertook the tour of facilities. What struck me first and foremost is the change in the demography of these facilities. The network now holds an increasing number of detainees who present behavioural challenges, including an increasing number of people subject to adverse security assessments; people who have been convicted of violent crime, drug or other serious criminal offences; and others deemed to be of a high-security risk such as members of outlawed motorcycle gangs.

The presence of high-risk detainees with behavioural challenges has the potential to jeopardise the peace, good order and security of our immigration detention facilities and the safety of all people within those facilities, including staff and visitors. You would sometimes think, from the way the public debate on these matters is conducted, that we are talking about facilities that are housing, essentially, large numbers of people who may have come here seeking asylum. But, as I mentioned, the demography of these facilities is changing. The other point I should stress and which was brought home to me, as I said, on my visit to Villawood is that these facilities are actually divided into high, medium and low risk. Families, for example, have their own part of the facility. There are some people who are in medium security and others in high security, and often the high-security ones are the ones who are a particular risk not only to themselves but to other people. There is a lot of care and a lot of thought that goes into the layout, the design and the construction of these sorts of facilities. This is something we must remember when we look at why the government is seeking to clarify the powers that should be available to those providing detention services in these facilities.

The use of reasonable force in these circumstances is not a new concept to the Migration Act 1958. Various provisions in the Migration Act authorise the use of reasonable force in specific circumstances. For example, it may be necessary in certain circumstances to use reasonable force to carry out identification tests. There are currently, however, no provisions in the Migration Act 1958 that authorise the use of reasonable force as proposed in this amendment. In the absence of legislation, officers and staff of the detention services provider rely on common law powers, as conferred on ordinary citizens, to exercise reasonable force when it is necessary to protect themselves and others from harm or threat of harm. The extent of this authority is, however, limited. Clearly, using reasonable force to manage issues of physical safety, good order, peace and security in an immigration detention facility is a matter for parliament to decide, not the common law. It is one of the matters for which we should be accountable. We provide a framework of certainty around the exercise of such powers.

This bill provides for suitably trained and qualified authorised officers to use such reasonable force against any person or thing as the authorised officer reasonably believes is necessary to protect the life, health or safety of any person in an immigration detention facility and to maintain the good order, peace or security of an immigration detention facility. In particular, the bill provides for an authorised officer to use reasonable force if that officer reasonably believes it is necessary to protect a person from harm or a threat of harm; protect a detainee from self-harm or a threat of self-harm; prevent the escape of a detainee from an immigration detention facility; prevent a person from damaging, destroying or interfering with property in an immigration detention facility; move a detainee within an immigration detention facility; and prevent action in an immigration detention facility by any person that endangers the life, health or safety of any person or disturbs the good order, peace or security of that facility—for example the detention service provider having to use reasonable force to separate visitors who are fighting.

The bill inserts into the Migration Act 1958 the new definition of 'immigration detention facility'—that is, a detention centre established under the Migration Act 1958 or a place approved by the minister as a place of immigration detention. This restricts the powers in this bill to immigration detention facilities in Australia, including Christmas Island.

The bill inserts a provision that prevents the minister or the secretary from authorising an officer as an authorised officer unless the officer satisfies the training and qualification requirements determined by the minister in writing. It has not been considered appropriate to list the training and qualifications that officers must undergo to be authorised officers in the Migration Act itself or in the migration regulations. This is because those qualifications and training change over time, as does the content of the training. This is a dynamic process. It would not be practical to amend the act or the regulations on a regular basis to reflect these changing and updated training requirements. It is expected that the standard of training and qualifications will be delivered by an accredited nationally registered training organisation.

At this time, the qualification and training requirements that are likely to be determined by the minister in writing for the purposes of new subsection 197BA(7) of the Migration Act include the Certificate level II in Security Operations. This certificate course includes the units of competency 'respond to security situations' and 'follow workplace safety procedures in the security industry'. These units cover the full range of knowledge and skills required for authorised officer to use reasonable force in an immigration detention facility, including identify a security risk situation; respond to a security risk situation; use negotiation techniques to defuse and resolve conflict; and identify and comply with applicable legal and procedural requirements.

This is not about bouncers in Kings Cross. This goes way beyond that—for example, use negotiation techniques to defuse and resolve conflict; identify and comply with applicable legal and procedural requirements. Having visited these types of facilities, I can tell you that the type of people who are working there and the officers of the Department of Immigration and Border Protection, the Border Protection Force and the like are very serious and dedicated individuals, and they are very conscious of the scrutiny that applies to people who work in these facilities. Don't forget that these facilities are also being visited on an almost daily basis by members of the community and members of the legal profession.

As I said before, care is taken to ensure the segregation of different risk categories of detainees. No-one pretends that being in detention is going to be an overwhelmingly positive experience. But a lot of care is taken, including, for example, kids whose parents may be in detention being taken to the local school. In that situation, a vehicle, which does not look like a police vehicle or an Immigration and Border Protection vehicle, is despatched to take the kids to school and pick them up in the afternoon. Every care is taken within the facility, through the use of separate housing, for example, to create a family-like atmosphere for families who are in the facility. And they are not put at risk by being placed in the same place as high-risk prisoners.

I have met and spoken to some of the security officers who work there. These people are articulate and credible and are dedicated to looking after the people in their care and recognise that they have a duty of care. There is nothing wrong with a government spelling out in legislation the obligations and responsibilities of the people who must work in these facilities and giving them protection and guidance about the circumstances in which reasonable force can be used.

Provided the reasonable force is exercised in good faith, the bill bars court proceedings against the Commonwealth, including an authorised officer. This provision provides the appropriate balance between protecting authorised officers in the exercise of the power to use reasonable force and ensuring that the power is exercised in good faith. The provisions in this bill send a very clear message to authorised officers that force is not to be exercised capriciously or inappropriately. The bill inserts provisions that specifically limit the exercise of the power to use reasonable force by authorised officers, preventing them from doing any of the following: using reasonable force to give nourishment or fluids to a detainee in an immigration detention facility;    subjecting a person to greater indignity than the officer reasonably believes is necessary in the circumstances; and    doing anything likely to cause a person grievous bodily harm, unless the officer reasonably believes that doing so is necessary to protect the life of, or to prevent serious injury to, another person, including the authorised officer.

To further ensure that the use of force will not be abused, the bill will provide for a statutory complaints mechanism. This mechanism will allow persons to complain to the secretary about the exercise of the power to use reasonable force. These amendments will require the secretary to provide appropriate assistance to any complainant. This complaints mechanism, I stress, does not restrict a person from making a complaint directly to another source such as the state or territory police services, the Australian Federal Police or the Ombudsman. An appropriate complaints mechanism is an important accountability measure in relation to the exercise of the power to use reasonable force. The government considers that safe and effective immigration detention policies and strong border protection measures are not incompatible. We seek to strike an appropriate balance between maintaining the good order of a facility and the safety of the people within it and the need to ensure that the use of force is reasonable, proportionate and appropriate. The government is maintaining strong border security measures but is ensuring that all people in immigration detention facilities—including the detainees themselves—are safe from harm.

The preparation for the passage of this bill includes the introduction of risk mitigation measures and governance controls. These measures will be in place and ready for the implementation of this legislation. These measures include the development and implementation of appropriate governance instructions and admin arrangements to guide authorised officers in the use of reasonable force—in other words, there is no vacuum here; we are talking here about the development of a well-articulated framework to guide authorised officers in the use of reasonable force—and the establishment of agreed protocols for the handover of responsibility for dealing with disturbances in immigration detention facilities between the department, the detention service provider, the Australian Federal Police and state and territory police forces. It is very important to have those sorts of protocols in place to avoid misunderstandings about the division of responsibility between these various stakeholders, if you like, in good order in these detention facilities. Other measures include ensuring the authorised officers meet capability and training standards and hold appropriate qualifications to enable them to appropriately use reasonable force in immigration detention facilities, and the use of rigorous incident reporting mechanisms for advising of all instances where reasonable force is used in these immigration detention facilities.

This is a good and decent country, and this has always been a difficult area of policy because we do not have the capacity—if I am talking now about border protection—to take everyone who wants to come to this country. We seek to strike a balance in the composition of our immigration program; we then seek to deal as best we can with those who seek refugee status on coming to Australia. But the fact of the matter is that, unless you have strong border protection policies in place, you may encourage people to put themselves at risk to come to Australia. You always have to be balanced and proportionate in how you deal with these situations. The government has always sought, according to law, to deal with this situation in as humane a way as possible to maximise the prospects of having good, strong, appropriate refugee humanitarian programs while protecting our borders. It is very important for the sustainability and for the social licence, if you like, of our immigration program in the community that we are able to show that, as a government, we have control over our borders and who comes here and the circumstances in which they come and, in the case of detainees, the circumstances in which they are held.

There are many countries which are grappling with these issues. Australia has done its best to provide the appropriate balance. An immigration detention facility is not the nicest place in Australia to be, but the Australian government and the officers who I have met in places like Villawood strive to exercise their responsibilities in as humane a way as possible. There are plenty of mechanisms in this legislation to seek to balance the need for appropriate use of force with humane treatment of people in these facilities. It is a free and democratic country. There are plenty of avenues of scrutiny, and I believe that this balance is struck by this legislation.