Wednesday, 13 May 2015
Migration Amendment (Maintaining the Good Order of Immigration Detention Facilities) Bill 2015; Second Reading
In speaking on the Migration Amendment (Maintaining the Good Order of Immigration Detention Facilities) Bill 2015, I strongly support the position as outlined by the member for Corio and the amendments that I understand he will be moving later on in this debate.
The purpose of the bill, as I understand it, is to put in place a framework to clarify the circumstances in which an authorised officer may use reasonable force in carrying out their duties within immigration detention centres. Whilst the intent of the bill has merit, I have very serious doubts as to whether this bill will achieve the intended purposes.
The bill is intended to clarify that reasonable force may only be used where it is considered necessary to 'protect the life, health or safety of any person in a detention facility, or to maintain the good order peace or security of any immigration detention facility'. The bill also specifies the types of circumstances in which reasonable force may be used and those circumstances where it would be prohibited.
The use of force in detention centres is currently undefined and unregulated by a statute, as other speakers have made clear. The use of force operates under common law. From this bill there is an inference that Australian common law is inadequate with respect to the use of force within immigration facilities, or conversely that a separate set of laws, or a different set of standards should apply when force is used within a detention centre. It is an inference I am not persuaded of.
I do not believe that the case has been made by the government as to why common law is not appropriate for adjudicating on the use of force within detention centres. Nor am I convinced that the bill, as currently worded, will provide a clearer understanding of what is considered reasonable force. The use of force will always be a matter that is subject to opinion and the circumstances relating to each case where force has been used. It is very likely that what we will see is more uncertainty relating to the use of false and more legal proceedings being instituted, particularly until this law has been tested in the courts and some precedence has been established if the law, as it is currently proposed, gets through this parliament. Conversely, under the current long-standing common law rulings, there already exists considerable precedence and, therefore, some guidance for all.
I also understand that the bill seeks to address issues raised in the Hawke-Williams report into the incidents at Christmas Island and Villawood. The report recommended that there be a clear articulation of 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. A clear articulation of responsibility is an entirely separate matter to the use of force, and I do not see how that recommendation, on which the government relies for this legislation, in any way recommends that the law should be changed with respect to the use of force. From my own perusal of the Hawke-Williams recommendations, I found no mention of the use of force or any need to clarify that matter.
Interestingly while the government, in its explanatory memorandum on the bill, claims that the bill is compatible with Australia's Human Rights obligations, the Parliamentary Joint Committee on Human Rights thought differently. The committee raised serious concerns about the compatibility of this bill with Australian human rights obligations. In his tabling statement on 18 March, in respect to the report on the Migration Amendment (Maintaining the Good Order of Immigration Detention Facilities) Bill 2015, the chair said:
This bill raises a number of questions about whether the powers in the bill, as currently drafted, are appropriately circumscribed. Reference is made in the statement of compatibility to a number of safeguards around the use of force which are to be included in policies and contracts with immigration detention service providers, but which are not included on the face of the legislation.
The committee make it absolutely clear that they too have concerns.
It is more likely that any uncertainty relating to the use of force rests more so with the training qualifications and experience of detention centre officers than with an inadequacy of Australian common law. In that respect, I agree with the provisions in the bill, which require authorised officers to have appropriate qualifications and ongoing training. The best way to support officers working in detention centres is indeed to provide them with the best possible training. However, my understanding is that the level of training required will be certificate II in security operations.
In his second reading speech, the minister noted that amongst the persons held in detention centres are likely to be: 'people subject to adverse security assessments; people convicted of violent crime, drug or other serious criminal offences; others deemed to be of a high security risk such as members of outlaw motorcycle gangs'. We also know that many refugees have themselves been subjected to horrific and traumatic situations before arriving in Australia and indeed may not be in a good mental state. So we have, in the minister's own admission, some of the most difficult people to manage, locked up in detention centres, and we entrust their supervision onto people with certificate II qualifications in security operations when perhaps their custodians should be the most experienced and best trained officers.
The minister's simplistic response in managing what are difficult situations is to change the law so that the use of force is more acceptable. The use of force should always be a matter of last resort. The priority should be to raise the standard of accreditation so that the training adequately prepares officers for the difficult situations they are likely to face.
Which brings me to a secondary concern. Unlike with sworn police officers, where the training is carried out by government to government standards, the training for detention centre officers is likely to be provided by a private registered training organisation. I do not know which private registered training organisations will be providing the necessary training but I am conscious of the concerns raised about many private RT0s in recent times.
There are other matters about this bill which do not sit comfortably with me. The government's mantra has consistently been that it has stopped the boats and that it is closing down detention centres in Australia. Indeed, last night in his budget night address, the Treasurer made reference to savings that have been made as a result of that, and I understand that there have been a number of detention centres that have now been closed. There is also a policy of transferring refugees to Manus Island and Nauru, where this legislation simply will not apply and has no relevance. So if there is a diminishing number of people being held in Australian detention centres, why is there a need to change the law with this, what I consider to be, poorly thought-through legislation? One can only conclude that the government anticipates more difficult situations, more unrest and more protests within detention facilities.
In light of several reports about the terrible conditions under which detainees are kept, it seems inevitable that conflict and protests will occur. As was reported both by the President of the Australian Human Rights Commission, Gillian Triggs, in her report The forgotten children and by Philip Moss in his review of the processing centre in Nauru, detainees are allegedly subjected to a range of degrading, humiliating and abusive treatments. The findings of those reports cannot be dismissed, nor can they be dismissed on the basis that Nauru is an offshore processing centre outside Australia's jurisdiction—and likewise with Manus Island. Australia is responsible for the agreements in respect of those two facilities. It has signed agreements with the respective countries. I understand that Australia wears the costs of running those facilities and that indeed it is Australian based contractors that provide many of the services there. The Australian government simply cannot walk away from its obligations with respect to how the people in those facilities are treated, if that is the case—and it is.
This bill simply emphasises, in my view, the Abbott government's tough refugee strategy. It is a strategy that is very clear: if you treat refugees harshly, that will further deter them from coming to Australia. It would be useful to know the fate of those people who were on board the boats that were turned back by this government. We never did find out, and I assume that we never will know.
Adapting policies or strategies that prevent further refugees from reaching Australia is one matter, but the treatment of people who have reached Australia and who are within Australian government care is an entirely separate matter. Nor can the government wash its hands of that responsibility by transferring people to an offshore facility, as I said a moment ago. Not only has Australia been an initiator of and signatory to many human rights protocols and conventions, but the concept of a fair go has become entrenched in Australian values. Regrettably, under the Abbott government, those values do not extend to refugees.
I also note with some concern that the Secretary of the Department of Immigration and Border Protection has the power to not investigate a complaint if:
has dealt, or is dealing, adequately with the complaint; or
has not yet had an adequate opportunity to deal with the complaint; or
All of the criteria which the secretary could rely on to dismiss a complaint are extremely subjective and therefore give the secretary considerable unaccountable authority under this current legislation.
It is not sufficient to argue that complaints can be made discreetly to the Ombudsman or to the relevant police, as many refugees, people in detention centres, including children, would not have the confidence to do so. They possibly would not even have the knowledge that those options are available to them. Even if they did, for a whole host of reasons they may choose not to pursue their complaint, particularly if they have already made a complaint to the secretary of the department and it has gone nowhere. That would certainly deter them from trying to do anything further.
It does not seem satisfactory to me to have the first point of complaint being the very person responsible for the administration of the very department against which the complaint is being made. That particular aspect of this legislation sits very uncomfortably with me. As I said a moment ago, I accept that there might be other opportunities, but in the real world I also believe that those opportunities would not be pursued, for the reasons which I outlined.
In summary, I believe that this legislation is not necessarily motivated by the need to change the law to make it clearer. I believe it is motivated by a government that wants to appear to be tough on refugees and therefore give the additional power that it wants to to the people who work within the centres. There are better ways of improving the difficult situations that arise within centres than simply changing one aspect of a law, which supposedly clarifies where and when force can be used, when indeed I doubt that it will even do that. The amendments to be moved by the opposition, by Labor, with respect to this bill I believe are worth supporting because they certainly make the bill a much better bill and improve it to the point where I believe I could support it.