Wednesday, 13 May 2015
Migration Amendment (Maintaining the Good Order of Immigration Detention Facilities) Bill 2015; Second Reading
I wholeheartedly endorse the comments of the member for Griffith in respect of this bill, the Migration Amendment (Maintaining the Good Order of Immigration Detention Facilities) Bill 2015, and her very well-researched and informed opinion. I thank her for the work she has done in highlighting some of the inadequacies of this bill.
As the member for Griffith mentioned, Labor has concerns about this bill in its current form. The bill was referred to a Senate committee. That committee has gone through the process of taking evidence. The submissions to the inquiry have been made public and, although the Senate committee has not reported, it is due to report. They recently extended their reporting date to 5 June. The shadow minister, Richard Marles, will move amendments to this bill and those amendments will adopt the proposals that have been offered to the committee by the Human Rights Commission. Those amendments seek to get the balance right when it comes to the use of force within detention centres. The Human Rights Commission's amendments and their submission to the inquiry suggested that there be a limit put on force with the inclusion of objective tests of reasonableness and proposed amendments that more clearly define the role of authorised officers. It will not only strike a better balance but also give more clarity and certainty for the officers who are concerned. The changes will, amongst other things, ensure that the use of force is for the shortest amount of time necessary and does not amount to cruel, inhumane or degrading treatment whilst prohibiting the use of any force when none is needed and the use of more force than is needed.
That is the position that I take in respect of this bill, but I do wish to make a few general comments regarding the matters contained within the bill. We all know that maintaining good order and safety within immigration detention facilities is of the highest priority and, of course, given the levels of stress that are experienced at times by those in detention, the task of protecting the staff and detainees can require certain actions in a relatively short amount of time. This bill ensures the safety and protection of those inside the detention facilities by clarifying the regulatory regime surrounding the use of reasonable force by authorised officers. That is a principle that I support: clarifying and providing certainly regarding the use of reasonable force on an issue that is currently left to the common law. The problem I have with the current amendments is that they do not strike the right balance. There are many legal complexities associated with that, particularly the bar on an individual who has been the subject of the use of reasonable force taking legal action in the wake of that. I think it is important to note that the bill does not expand on the powers of officers in terms of the nature and extent of their use of force within detention centres; it simply provides clearer authority than is currently contained in the common law to assist detention officers to conduct themselves with the benefit of a clearer understanding of the extent of the limits of the force that they may use.
The population of our detention centres is something that has been changing. If you look at the statistics regarding those who are detained, you see that two years ago just four per cent of those people who were held in Villawood and Maribyrnong were categorised as non-asylum seekers. Today, non-asylum seekers, people's whose claims for protection visas are unsuccessful, make up 25 per cent of those within facilities. As a result, these facilities now house a much larger proportion of at-risk detainees. This includes detainees who have had their visas cancelled due to having failed the character test or as a result of criminal convictions; outlaw motorcycle gang members convicted of firearm and drug related offences; those subject to adverse ASIO assessments; and others who have breached their visa conditions.
The shift in that dynamic within detention centres in terms of the make-up of the population has, unfortunately, necessitated, amongst other things, a greater degree of flexibility in respect of the work that officers can do in the rare circumstances where they do need to use force to detain people to stabilise goings on within the facilities. Currently that use of force is dealt with under the common law. That means that officers who work within these centres have the same obligations as any other Australian citizen who is authorised to take reasonable steps to prevent a disturbance of the peace, arrest suspected offenders or use reasonable force when the safety of another is being threatened. Obviously, there are some inadequacies that go with that particular common law definition of reasonable force applying to the work of officers within detention facilities. For one thing, they may be called upon to legally justify their use of reasonable force following an incident. That can result in officers approaching the situation with a high degree of doubt and uncertainty as to how they are to intervene. I know that people get appropriate training and they develop the skills to deal with these situations but, if in the back of their minds there is doubt about how their approach is going to be dealt with under the common law, it can result in unnecessary injury and, in some rare cases, unnecessary loss of life, and that is inappropriate and is something that the parliament should be involved in rectifying and in providing greater certainty for.
The difficulty associated with these circumstances was considered in the Independent review of the incidents at the Christmas Island Immigration Detention Centre and Villawood Immigration Detention Centre report of the inquiry conducted by Dr Allan Hawke and Ms Helen Williams in 2011. The Hawke-Williams report recommended that there be clear articulation of the responsibility of public order management between the department, the detention service provider, the Australian Federal Police and other police forces who may attend an immigration detention facility. The good order bill provides clear and specific powers for the use of force in immigration detention facilities.
These powers can also be used: to remove a detainee from a room or to force entry to a room to prevent harm; to isolate detainees to contain an incident; to deter organised disruptions through separating detainees or cordoning off certain areas within a facility; to move a high-risk detainee within an immigration detention facility to a place where they can be more closely supervised; and to restrain a detainee to prevent escape.
The bill also includes provisions to prevent the use of force in specific circumstances. An authorised officer will be prohibited from doing any of the following: using reasonable force to administer nourishment or fluids to a detainee; subjecting a person to greater indignity than the authorised officer reasonably believes is necessary in the circumstances; and doing anything likely to cause grievous bodily harm, unless the authorised officer reasonably believes that doing that thing is necessary to protect the life of, or prevent serious injury to, another person. Those are the ways the bill clarifies the use of force within detention facilities.
But, as I mentioned earlier, the difficulty associated with this bill revolves around the importance of getting the balance right. Maintaining good order of immigration detention facilities is of importance, but it must not override other considerations with regard to the rights of those people within the facilities, particularly when those people are children. In this respect, Labor has listened to the experts and the advice of the Human Rights Commission through the Senate inquiry process. The Human Rights Commission, in its submission to the Senate Legal and Constitutional Committee inquiry, has made some very sensible and, we believe, beneficial changes to the bill.
Commissioner Gillian Triggs has sought to limit the use of force, with the inclusion of objective tests of reasonableness and proposed amendments that more clearly define the role of authorised officers. These changes will, amongst other things, ensure that any use of force is for the shortest amount of time necessary and that it does not amount to cruel, inhuman or degrading treatment. The changes also prohibit the use of any force when none is needed and prohibit the use of more force than is needed. I am of the view that the extremely sensitive nature of the subject matter to which this bill relates demands that every effort is made to get this balance right.
We believe that the amendments proposed by the Human Rights Commission strike the right balance. It would send a clear message about providing an objective test regarding the use of force in immigration detention facilities—not only for the officers concerned and the hierarchy of the department, but also, importantly, for a judge, who may be called upon to adjudicate in a matter where it is alleged that force was unreasonable and over the top and resulted in injury to the person seeking to be detained.
The bill puts in place a statutory complaints mechanism which complements existing avenues for complaint over the use of perceived excessive force. The complaints would be investigated by the secretary of the department, who can then refer the matter on to the ombudsman, or the AFP or the state or territory police commissioner. The bill also provides for the secretary of the department to arrange for assistance to be provided to a complainant who requires help to formulate their complaint. The bill does require that the complaint is in writing and that it is signed by the complainant. The purpose of this requirement is to ensure that the complaint is genuine and that the complainant can be identified.
These additional amendments, which the shadow minister will move at the conclusion of this debate, provide better balance. They provide more certainty for officers involved in the use of force. They provide more certainty for the departmental executive but also, importantly for the judiciary, who may be called upon to adjudicate in a matter where there has been a complaint—where it has been through the ombudsman and the like—and a decision needs to be made on whether or not the force used was reasonable.
Providing that objective test will make it much easier for those concerned and will provide more certainly. It is on that basis that I am happy to support the amendments suggested by the Human Rights Commission and that will be moved by the shadow minister.