Carol Brown (Tasmania, Australian Labor Party, Shadow Parliamentary Secretary for Families and Payments) Share this | Link to 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.

Sarah Hanson-Young (SA, Australian Greens) Share this | Link to this | Hansard source

I rise tonight to speak to the Migration Amendment (Maintaining the Good Order of Immigration Detention Facilities) Bill 2015 and put very clearly on the record the Greens' objection to the bill. I participated in the Senate inquiry into this piece of legislation and, having watched how previous pieces of legislation have been pursued in this place, I will be moving a number of amendments that go to dealing with some of the worst aspects that currently exist within our immigration detention network—namely, the lack of mandatory reporting of abuse and assaults, particularly involving children; media access to detention facilities; the secrecy provisions that have been introduced under the new Border Force Act; and training standards for guards, which relates directly to the principles of this piece of legislation.

The Migration Amendment (Maintaining the Good Order of Immigration Detention Facilities) Bill 2015 has revealed a deluge of concerns from the community, human rights advocates and legal experts. The bill confers excessive immunities and powers upon authorised officers, without adequate safeguards. The government have not been able to control the behaviour of people who work within these facilities already. Just this year, questions at Senate estimates have revealed that, in the three months between February and May this year, there were 15 sexual assaults inside the detention network, two involving children, and 259 assaults of a non-sexual nature, 11 involving children. There have also been numerous well-publicised incidents of guards who have physically assaulted and abused asylum seekers within their care on both Manus Island and Nauru. If the government cannot control things as it is, if they cannot control the appropriate behaviour of staff as it is, then why on earth should we be asked to trust that giving officers in these places even more excessive powers would be acceptable?

We also know that there have been at least a dozen requests by the media for access to detention centres in the last financial year and that all 12 of these requests were denied by the immigration department. Even though media are able to request to be able to visit detention centres and can sign up to all of the protocols as outlined by the immigration department, not one journalist was given access to any of Australia's immigration detention facilities. These are facilities that are shrouded in secrecy. The staff are gagged from speaking out when they see things that are going on that are wrong. The media are locked out, and asylum seekers are silenced from being able to speak for themselves and tell their own stories about what is going on inside.

The passage of the Border Force Act 2015 recently means that any staff who dare to speak out publicly or above their superiors in relation to abuse, ill treatment and poor conditions inside detention facilities can be jailed for two years. We have this ridiculous situation where there is no mandatory reporting requirements for security officers—the staff who are on the ground floor, face-to-face with asylum seekers—to report abuse when they see it; no mandatory reporting for those staff. Yet, for everybody else, including guards, but whether they be doctors, nurses, social workers, mental health workers or people who work in such facilities, if they see a child being abused or an asylum seeker in the care of the contractors being assaulted, they are not allowed to raise it and they are not allowed to speak out. The only way that those people can report those abuses is to their managers. We know that once this threat of jail, of prosecution, has been put directly to these staff, people are intimidated from speaking up and speaking out by virtue of the fear of what will happen to them and their jobs.

Detention centre staff are subject to very, very strict confidentiality clauses in their contracts. Staff are gagged from saying what goes on in these places, even when it comes to issues of child abuse and assault. Given the extreme level of secrecy, there is absolutely no way that the Australian people, or indeed parliamentarians, can trust that the government has control of what goes on in these places in the best interests of the individuals who are meant to be being cared for.

There is no way that we can trust that each person employed in these facilities will always act within proper responsibilities. And here we have before us a piece of legislation that effectively gives force powers to security officers who have no more training than a certificate II. That is the same training, of course, as a nightclub bouncer. Yet, the immunities that come within the provisions of this bill and the signal it sends to staff that force is, effectively, okay set up a very, very dangerous context and circumstance.

This bill has been on the Senate table for a number of months now and there have been many, many concerns raised by members of the community and by experts in the field of immigration law and in the general provisions of how facilities like this operate. Because of that, we do not support the passage of this bill. Here are a number of the key reasons: the excessive and unjustified powers that it confers on guards; the lack of safeguards, restricting the use of force; the absence of any time limit on the extent of force permissible; and the failure to address the real problem of mixing the people there. Some of the people may indeed be convicted criminals not asylum seekers, not people seeking refuge and protection. Some of people may indeed have broken the law and they are put in the same facilities alongside Somali families, alongside a young Afghan asylum seeker or alongside families from Syria.

Other failures of this bill include the insufficient training prescribed for guards with new powers; the insufficient oversight prescribed for guards with new powers; the excessive and unjustified immunities from legal action for guards who exceed force; and, of course, above all else, the lack of transparency as to what actually goes on in these horrid places. If the government was fair dinkum about wanting more powers of force for the officers who work in these places, it should have come to this place with a deal to be more transparent and more open—a check on power, an openness about what the public and the parliament can see about how these places operate and the rules, the treatment and the conditions inside. You have to wonder what on earth the government are hiding from in terms of the conditions inside Australia's detention camps when they lock out the media, they gag the staff and they threaten anybody who questions the confidentiality and gag rules of the contracts that are signed by the government.

This bill provides that force may be used whenever officers believe that force is reasonably necessary. All you need do is walk down Hindley Street in Adelaide or somewhere in Kings Cross on a Saturday night and you can see that individuals who act as security officers for nightclubs, nightclub bouncers, do not always get the decisions right about how they engage with members of the general public. Yet, here we have officers whose minimum qualifications are that of a nightclub bouncer being given authorisation by the Commonwealth to treat the people in their care, effectively, how they want, giving them excessive force powers. All they have to do is say, 'I thought it was reasonable.' It is a recipe for disaster.

This 'reasonably necessary' standard is extremely low and relies upon an unauthorised officer's subjective belief. Prison guards and the Australian Federal Police are subject to a stricter and objective standard. If we expect more of our police officers, if we require more of the guards who guard our prisons, why on earth should this place be expected to give unfettered force powers to security guards, who are meant to be looking after asylum seekers and refugees?

The breadth of the circumstances in which force may be used is also far too wide—using force to maintain good order, whatever that means. I tell you what: good order is humane conditions inside these horrid camps; and children who feel safe and secure, not children who feel terrified on a daily basis that they are going to be woken up at two or three o'clock in the morning and moved to a different detention centre. Good order means allowing media and advocates into these facilities so there is transparency about what goes on. But of course that is not the nature or the description of good order as outlined by this government's piece of legislation.

The measures outlined in this bill also remove the right to peaceful protest from those who are detained inside, and force may be used on them at any given time in line with these new laws and to move them within the facilities. Every person in this country has the right to peaceful protest. Every person in this country has the right to speak up and question, particularly when they believe they are being treated inhumanely and unfairly.

The mothers, who recently protested peacefully in the Darwin facility at Wickham Point, did so because they were terrified that their young babies and toddlers were going to be sent to Nauru. Under this piece of legislation, they would be subjecting themselves to the use of force.

There are no safeguards for restricting the use of force in this piece of legislation. Under this bill, there is no limit on the extent of force permissible. This legislation gives unfettered power to physically restrain or use force against a person—man woman or child—if indeed the security officer at the time believes that it is reasonable, a security officer who has no more qualifications than a nightclub bouncer.

One of my biggest concerns in relation to this legislation is that it is setting up those officers who work in detention centres to be very unclear and to feel uneasy about what they are and are not allowed to do. There has been some talk that this bill was going to provide clarity so that officers knew what the extent of their powers was. There is no clarity apart from: whatever goes will be okay—hands off; treat people however you want; we will turn a blind eye; and we won't care. The media will never find out about it, because they are not allowed in, and any other staff who want to talk will be targeted, prosecuted and liable for up to two years jail. I do not think that that is going to make any officer in Australia's detention facilities tonight feel any safer, more secure or give them any more clarity about what their role entails.

As I have mentioned a number of times, there is insufficient training outlined in this legislation—a minimum standard of a certificate II, a night club bouncer. The bill permits the minister to determine the level of qualifications required by officers to use force. It was listed in the explanatory memorandum as a certificate II. I can tell you: Minister Dutton is the last person who should be setting the standards for training security officers to deal effectively and responsibly with the use of force in Australia's detention facilities.

Certificate II in security takes about 16 days to complete. Most of the training is on the job. There is no requirement for people to have an understanding of the struggles and difficulties of somebody who has fled a war zone, the mental health issues, the post-traumatic stress from their experiences or the years and years and years of being locked up in indefinite detention.

There is nothing in this legislation to help people who work in these facilities to deal with the real struggles, the realities of asylum seekers in Australia's detention centres every day—attempted suicide, self-harm. We are giving them excessive and unfettered powers to use force and to determine as an individual when that force should be used. But we are not giving them the training to deal with a young man from Afghanistan who has lost all hope and tries to hang himself in the bathroom.

This government's priorities are wrong when it comes to the staff and training issues that are required in our immigration facilities. There is of course, like many other areas in relation to this government's agenda on immigration and border protection, insufficient oversight of how these powers will be implemented, how they will be used and what happens when inevitably something goes wrong.

The complaints mechanism is a farce. Having to simply call a hotline in the immigration department to dob in your work mate or your boss does not give you confidence that, when things go wrong, they will be dealt with appropriately

The recent Senate inquiry into the conditions in Nauru have highlighted very, very clearly that staff who work in these places who are trying to do their jobs well despite the lack of expertise, assistance or understanding, often from their own contracted employers or indeed the department have no confidence that the complaints that they make about conditions and the treatment of people will be taken seriously. Philip Moss's review of the conditions inside the Nauru detention centre highlighted clearly that underreporting of incidents is a regular occurrence and is a serious problem because staff themselves have no confidence in the government's systems to respond seriously. That is why we must have mandatory reporting of abuse and assaults of all staff inside our facilities. It is why we must allow the media to access our facilities. It is why we need sufficient training requirements for all staff, particularly guards. Above all else, it is important that we remove the threat of jail that hangs over the head of staff simply for speaking out when things go wrong.

Arthur Sinodinos (NSW, Liberal Party) Share this | Link to 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.

Sue Lines (WA, Australian Labor Party) Share this | Link to this | Hansard source

I rise to oppose the Migration Amendment (Maintaining the Good Order of Immigration Detention Facilities) Bill 2015. I would like to start by dispelling some of the myths that we have heard, as usual, from the Abbott government in relation to this bill. The first myth I would like to dispel is this blatant misuse of the Hawke-Williams report that the Abbott government has cited as being the magic bullet—the formulaic response, if you like, to why we are going down this track. The Hawke-Williams report does not mention anything in relation to the use of force, yet we hear the Abbott government use that report as a justification for where this use of force comes from. But the Parliamentary Joint Committee on Human Rights when assessing this bill, said:

Further, the committee notes that the Hawke-Williams report, which is cited in support of the stated objective of the measure, does not contain any reference to the inadequacy of the common law regarding the use of force and did not recommend creating a statutory use of force power for employees of an IDSP. Rather, it focused on ensuring appropriate arrangements to clarify the respective roles and responsibilities of managing security between the department, the IDSP and the police …

And it recommended the establishment of a protocol. That is what the report says, so anything we hear from the Abbott government saying that somehow the Hawke-Williams report backed in the use of force is completely incorrect.

The second issue, which I will mention briefly, is training. In my former role as an official at United Voice, I organised detention centres, so I am well aware of what happens in them from the perspective of the guards. Again, we heard somehow that these guards, if they were given the power to use force, would be appropriately trained.

We just heard the certificate II mentioned. The certificate II is already the certification sought by detention officers. They already have a certificate II in security operations. Let me tell you a little bit about that certificate. One of the other roles I had at United Voice was to organise security officers, and I sat on national training boards and state training boards and I signed off on these certifications. So I think I have a fair amount of experience when it comes to knowing what a certificate II in security operations is for. That certificate is for people who act as security officers standing outside banks or shopping centres, or who drive around at night patrolling premises. It has nothing to do with detention facilities. The only reason it is used is that it is an inadequate response to the requirement to have trained officers. It was never ever intended for detention centres. It is for the use of people who are licensed security officers under state police acts to guard premises—banks, shopping centres, supermarkets—or who undertake what are called 'mobile patrols' where they patrol buildings usually at night and leave their card. It is an entirely inadequate certificate for this type of work—completely inadequate.

The Migration Amendment (Maintaining the Good Order of Immigration Detention Facilities) Bill seeks to formally establish a use of force regime in Australian detention centres. In opposing this bill, it is worth stepping back and identifying who will be given the authority and sanction to use force. Australian detention centres are run by private, profit-making services. The current operator of Australian detention centres is Serco, a large multinational company with a controversial history in running private prisons in the UK.

In my home state of Western Australia, Serco has been completely incompetent in running WA's brand new flagship Fiona Stanley Hospital. It was the Barnett government's decision to privatise this hospital. It has been nothing but chaos since this ill-considered decision was made. The last bungle involved the sterilisation of instruments used in surgery. Serco showed itself to be incapable of running this essential part of the hospital, so much so that the Barnett government was forced to take the sterilisation service back in house, back into the hands of competently, directly employed professionals.

What I can say about detention centre contracts, again from my experience as an official at United Voice, is that these contractors are usually awarded to the cheapest contractor. You will not hear the government say that but in my long experience of organising in detention centres, when contracts changed they always went to the cheapest contractor. This means that the workforce is often low paid and certainly in the case of detention centre staff their wages are significantly behind those of similar officers employed in the Public Service, which is essentially why this service is contracted out—it comes down to dollars.

Opportunities for training and building a career are limited as many contract detention staff are employed part time and casual. These are the officers who have just been described as professionals. Taking nothing away from the individuals who do the job, I agree with Senator Sinodinos. They are often fine people but they are employed part time and in substantial numbers they are casual, so they do not have any prospect of ongoing employment. In any event, there is little or no scope for moving up the scale or taking a career opportunity as there are effectively two levels of officers within the Serco detention centre—entry level and post entry level and then there are supervisory levels. A low-paid, casual workforce does not create a workplace where employees feel valued or where workers feel they have the support of them employers as they battle for shifts and decent pay.

Just a few months back, Serco concluded an agreement with the union, United Voice, and no provision has been made for this new position of authorised officer. Despite those opposite telling us that this was a professional position, that these would be highly trained authorised officers, in their wages and conditions no allowance has been made for this new authorised position with the onerous responsibilities that come with the use of force—nothing.

Despite the government's bill, which would give contract detention staff the new authority to use force, a bar to legal proceedings and questionable additional training, which will be some secret deal between the minister and the private profit-making contractor Serco, there is no mention of this new classification. Some in this place might be surprised to learn that detention centre officers earn a maximum base pay of $29 per hour. There is a requirement for formal training but only to the level of certificate II in security operations, which I have just described is a certificate applying to static guards, people who guard banks or mobile officers who patrol around and guard buildings usually at night. Again, this is entirely inappropriate as this qualification is a general security qualification and is designed for security officers to manage shopping centres and banks, not people seeking asylum.

If you look at the training and the competencies for a certificate II security officer, their skills and knowledge are completely at odds with the skills and knowledge an 'authorised' officer will be expected to deploy when faced with a decision on whether to use force. It is likely that an authorised officer will find him or herself in a complex situation and will be required to make an instant decision—a heat-of-the-moment decision—to use what the bill describes as 'reasonable force'. The training at the certificate II level describes a competent person—someone who has completed the course and met the competencies—as being able to demonstrate 'limited' judgement in 'structured and stable contexts' and within 'narrow parameters'. That is not heat of the moment and that is not having to make that snap decision about whether to use force. The Australian qualification, which is the Certificate II in Security Operations, criteria clearly sets out that a person at that level is not competent to undertake that level of decision making.

And yet the government does not blink. The government has paid no attention to the upskilling of detention centre officers and, despite the enterprise bargaining agreement just being concluded, Serco made no attempt to include the new 'authorised' officer classification, increase the qualification level or suggest a higher rate of pay for an officer who will, if this bill passes, be given the enormous responsibility, beyond the level of their competency—their level II training—of using reasonable force.

Now, it is easy to figure out why Serco did not want to include this new classification in its enterprise agreement—because it would eat into their profits. It is harder to figure out why the government is disregarding its duty of care towards asylum seekers by presenting the Senate with a bill which is found wanting on all its key components.

During the Senate inquiry, when I asked the government department responsible for this legislation if they were aware of ongoing negotiations between Serco and the union, they took the question on notice. And their response was inadequate to say the least, stating that it was a matter for the parties not the government. This was from a government that wants to change substantially the duties of detention centre officers. Somehow, it did not think that it should be involved in that. What a cop out, when the government itself is asking this parliament to give contract detention centre officers more powers than the Federal Police and more powers than prison officers. They are washing their hands of training requirements and applicable rates of pay.

In fact, when questioned during the hearing, the department said in evidence that contract detention centre officers had similar training to that of Western Australian prison officers and Victorian police. Nothing could be further from the truth. Victorian police undertake a Diploma of Public Safety: 33 weeks full-time with a further on-the-job training component of 83 weeks, which gives a total training period of two years and three months. Compare that for a moment with a Certificate II in Security Operations, which you can get on a weekend. This is the training qualification which the government says is adequate to give detention centre staff the authorisation to use force.

Of course, the qualification which the Victorian police undertake is a diploma qualification—not a certificate II, a diploma qualification—a stark contrast to a Certificate II in Security Operations which, as I said, can be done over two days. And the application of knowledge and skills could not be more different. In Victoria the use of force is defined as 'reasonable and necessary'—a test that the Abbott government does not want to put into this use of force in detention centres.

And let's not forget that this inadequate training will be a secret between the minister and the contractor. At the end of this diploma qualification, Victorian police have the skills and knowledge to demonstrate:

… autonomy, judgement and defined responsibility in known or changing skills contexts …

Compare that with the outcome for a certificate II security officer, which is 'in stable conditions' and under supervision.

Obviously, government senators at the hearing were concerned about this secret deal. In their majority report they recommended that the training be a legislative instrument and not a secret deal between the minister and the private, for-profit contractor.

And who is the government saying must be protected? There were at the time of the hearing around 1,635 people in Australian detention centres and, despite the broken promise and rhetoric of the government in its dirty deal in the Senate about releasing children by last Christmas, there were around 115 children in detention in Australia. If you take the children out it leaves about 1,520 adults in detention. We were told at the Senate inquiry into this bill that there were around eight per cent of this population that the government were concerned about—the bikie gangs and all the other labels that they like to add. That means that this bill is really being put in place to deal with around 120 people—120 people! They want to put into place a good order bill that gives detention centre officers the right to use force for about 120 people. That is really what we are talking about here—120 people.

In the explanatory memoranda, the minister sets out the reasons for this bill, which seem to go to:

The presence of high risk detainees with behavioural challenges, such as members of outlaw motorcycle gangs, jeopardises the safety, security and peace of our immigration detention facilities and the safety of all persons within those facilities.

Of course I am concerned about the safety of people in detention centres whether they are refugees or staff. But, seriously, the way the government flies refugees around this country, I think it could gather up the 120 people and put them in one place and hold them securely. I would suggest you do that, before you pass a bill that unilaterally gives detention centre officers who are low paid and poorly trained the authority to use force.

Seriously, the government wants to introduce a bill which gives sweeping powers to contract detention centre staff to use force, and the only test for the use of this force is that it is 'reasonable'—to use that against just 121 individuals whom the government is actively seeking to deport? Seriously, this beggars belief.

I believe this bill is more about demonising the bulk of those 1,635 individuals—men, women and children—who have a legitimate right to seek asylum in this country. The government are trying to interfere with that right by slowing down the application process and attempting to paint their usual picture of people as 'queue-jumpers', as 'illegals', as 'illegal maritime arrivals'—and whatever other labels they attempt to use in this place. They are trying to say that these are somehow people that law-abiding Australians ought to be frightened of. Nothing could be further from the truth.

I heard in evidence at the inquiry that people who had been granted asylum were still waiting in detention centres, and that on average people waited for around 400 days once their paperwork was submitted. Of course, in reality people wait much longer, as getting to the submitting stage can take years. And of course frustrations will rise when people are held for indefinite periods with no end in sight. Ensuring that processing is done in a timely fashion and keeping people informed about their application for asylum would go a long way to keeping frustration levels low.

The committee received a number of submissions from law experts and the Human Rights Commission, and they all expressed the same grave concerns about the use of force and the bar on legal proceedings—and the whole of this bill. Even the government's own senators raised concerns about the use of force and the need for clarification.

Despite that, the government seems hell-bent on pushing this bill through the parliament. Labor and others have significant amendments to this bill, and I hope they are accepted by the government.

Matthew Canavan (Queensland, Liberal National Party) Share this | Link to this | Hansard source

I want to start my contribution by picking up on some of the arguments Senator Lines put just then. Much of Senator Lines's contribution was focused on the fact that the particular training provided to Serco employees or employees more generally at these facilities is not sufficient for them to use reasonable force. She also made the point that the changes in this bill where not specific recommendations of the review into the detention centre facilities—the Hawke review, I think it was. I have the Hawke review right here on my trusty smartphone—my iPad is dead—and on page 153, it says:

The four week induction training course—

This is a course provided by Serco—

provides a Certificate II Security Operations qualification—

as Senator Lines said—

and covers areas relevant to security management at an immigration detention centre, including use of reasonable force and restraints …

Senator Lines spent most of her contribution saying that this training course does not provide people with the skills and experience to use reasonable force. She also said that the review did not cover the aspects that we are debating here today. Well it did. And the training does. So Senator Lines's argument is completely wrong. The training course that is provided by Serco does provide training sufficient for the use of reasonable force. And the review that the previous Labor government commissioned into these incidents admitted that, or claimed that. So I think that is good enough. It is good enough for a review that Chris Bowen released while he was Immigration Minister. I think it is good enough for us for this bill's purposes.

It is true, as Senator Lines said, that the report did not make specific recommendations about the use of reasonable force. What it did say, though, was that the department had to more clearly articulate the responsibility for public order and management between the department and the detention service provider and any police services.

This particular review was conducted in relation to two particular incidents at Christmas Island and the Villawood immigration detention centres in 2011. These were some serious incidents that did involve the use of police services. There had been—and the report outlined—difficulties in transitioning from a detention service providers to the police forces, in terms of who had responsibility for bringing public order and safety back into some balance. That is why the review recommended that more clarity needed to be provided. And this bill provides that greater clarity. That is what this bill is about. It is about authorised officers at a detention centre, employed by a detention centre provider, having the authority to use reasonable force.

It is important to establish or to point out that employees at the moment can use reasonable force. This is not new. This bill does not establish something new there. What it does is provide greater clarity and certainty. Officers right now can use reasonable force. Indeed, my understanding of common law is that most of us could use reasonable force if necessary in our own working lives. The employers of detention centres do need to rely on the common law provisions that allow for the use of reasonable force where a court could look objectively that it was a reasonable response in the circumstances. But relying on the common law does not provide officers with the degree of certainty that our police forces have and the protections in state acts for them or that wardens at prisons have and protections for them. They have protections for the use of reasonable force that are codified and included in the various laws that govern their professions. This bill does the same. It is saying that there is a common-law provision that there is a basic right to use force when it is reasonable, but we should provide the employees in these facilities, who put their own safety at risk, with some greater certainty that they too have the protections afforded to other officers in similar roles, particularly those employed by state and territory governments.

So what does this do? This bill outlines specifically what an authorised officer may use as reasonable force, so it provides that clarity I was speaking about. In the case of an authorised officer who reasonably believes it is necessary to protect a person, including the authorised officer himself or herself, in an immigration detention facility from harm or the threat of harm, reasonable force can be used. Reasonable force can be used if it is reasonably needed to protect a detainee in an immigration facility from self-harm or a threat of self-harm; to prevent the escape of a detainee from an immigration detention facility; to prevent a person from damaging, destroying or interfering with property in an immigration detention facility; to move a detainee within an immigration detention facility; or to prevent action in an immigration detention facility by any person that endangers the life, health or safety of any person in the facility or disturbs the good order, peace or security of the facility.

Those provisions specifically outline, with some clarity, what officers can use reasonable force for, and that is not something that currently exists for them, relying on the common law. I understand Senator Lines's care for the welfare of officers and employees of our detention service providers, but I disagree with her. It is my view that these protections are actually all about protecting those employers. It is about providing them with safety and security so that they can act to protect their own safety and the good working order of the detention facilities they work in.

It is also the case that, while the clarity has been provided in that case for what could constitute reasonable force, this bill does not seek specifically to define reasonable force per se.

Under policy, reasonable force must be no more than that required to ensure the life, health or safety of any person in the facility, be consistent with the seriousness of the incident, be proportional to the level of resistance offered by the person, avoid inflicting injury if possible, and be used only as a measure of last resort.

What I just quoted is from the explanatory memorandum, and it explicitly outlines that reasonable force can only be used where those criteria are met, in accordance with the general policy for the use of reasonable force, and there are a number of protections in there.

This bill also introduces other protections. There are requirements on officers to use reasonable force only as a last resort and only where it is a reasonable use of that force. This bill also will establish a statutory complaints mechanism that will allow anyone that would like to make a complaint about the use of force by a detention service provider to make that complaint and have it dealt with.

Senator Lines mentioned there were only 120 people she thought were a great threat. Well, 120 people can do a lot of damage. They can disrupt and cause harm to many people, and I actually want to put the interests of the employees of the detention service providers ahead of those 120 people that Senator Lines admits are troublemakers when they are in detention facilities. So this bill should be something that is supported and implemented by this government. I would like to seek leave to continue my remarks at a later stage.

Leave granted; debate adjourned.