Wednesday, 13 May 2015
Migration Amendment (Maintaining the Good Order of Immigration Detention Facilities) Bill 2015; Second Reading
At the moment, if you come to Australia seeking help and seeking asylum or refugee status, perhaps because you are fleeing war or persecution in your own country and you fear for your life, if you make it to Australian shores or into Australian waters, perhaps with your family, perhaps with your kids, you get locked up. You get locked up in a prison, and you are in that prison indefinitely. In that prison, that detention centre, with you—with those hundreds of people who are coming here seeking our help—are convicted criminals.
In other words, this government is putting together in the one place people, families and children who are coming to Australia seeking a better life and, on the other hand, people the government knows are convicted criminals. They are all locked together in these prisons—prison islands or island prisons or detention centres. They are all locked there together, not knowing if they are ever going to get out or when they will get out, because the detention is indefinite. In many instances, as we know, you might be told, 'We're not letting you out, because there's a black mark against your name,' but you do not even get told what the black mark is, or, 'You're just getting locked up indefinitely because that's this government's approach, and the government says that somehow that's going to stop people around the world taking to boats, seeking a better life.'
What happens—and what would you expect to happen—when you put people and young children, who just want to live a better life, behind bars and razor wire? What happens when you put them there indefinitely, you put them there together with convicted criminals, and you do it in environments where they are not getting proper health care, where there are questions about their schooling and where, sadly, as we know, there are reports of sexual abuse and self-harm? We know that one child every fortnight commits an act of self-harm in some of these places.
What happens when you put people in these hellholes and in these cauldrons together with convicted criminals? Well, from time to time there are disturbances. From the perspective of the people who are just here seeking a better life who may be looking at an indefinite life behind bars, especially young children who should be out playing at playgrounds but are instead forced to sit behind razor wire, when you have all of those people together and there are disturbances you have got a choice if you are the government. Obviously, the primary choice could be to stop mandatory detention. That is not on this government's radar, so let's take it for granted that that is this government's approach. You are managing these centres in this hothouse environment with kids and convicted criminals living side by side where none of them can get out and there are disturbances. What do you do? The simple thing to do, if you actually cared about protecting kids and protecting people's lives, would be to remove the convicted criminals.
The government are here saying these convicted criminals are, in part, behind some of the disturbances. That is what they are telling us. So the simple thing to do would be to take the convicted criminals out, so that there would be a marginally better quality of life for the people who are left inside. What does this government do? This government says, 'No, we are not going to do that. That would be far too sensible. We are going to keep convicted criminals locked up together with kids in an area where none of them can get out. Notwithstanding the fact that there have been lots of claims of abuse and involvement by some of the centre staff in those claims of abuse, we are going to keep them all locked up together and then we are going to give the guards in those centres, who employees of private firms, more power than Australian Federal Police officers. So we are going to give them even greater power to crack down on people and keep them in line rather than separate the criminals from the people who are just there seeking a better life.'
With this bill, the government wants to give broad powers to use force—powers which are greater than those enjoyed by prison guards or AFP officers—to private company employed officers with significantly less training than prison guards or police officers. In addition, the government wants to give them extremely broad immunities from legal action for all the force that they use—which again is greater than prison guards or AFP officers—and without the safeguards restricting the force that prison guards are subject to, without any limit to the extent of the force permissible and without any independent oversight or accountability. In other words, the government wants to turn all of these camps into minidictatorships where the guards running them—employed by private sectors—have greater rights to use force against everyone in there, including the children in there, and far less accountability.
Instead of saying, 'Let's just separate the criminals out from the others,' what is the government doing with this bill? Firstly, in the full knowledge that there are up to 35 per cent of people within what are called the section 501 category, which includes the people who are convicted of a criminal offence, the government is keeping them there and is instead bringing in a broad bill that will apply to all of the others who have done nothing wrong. Not only is detention together with criminals cruel and unfair for asylum seekers and in contravention of clear United Nations guidelines but it is also the cause of the problem sought to be addressed by this bill.
We know that there are at least a couple of reasons that the government is doing this—leaving criminals in detention centres and giving Serco guards more powers. We know that there are criminals and abusive guards in the detention centres—and we know that there are abusive guards there because report after report has told us so—and they will just be heaping further misery on asylum seekers. I think one of the government's motivations is that it wants to make life for these asylum seekers in the detention centres almost as bad as the persecution they were fleeing. I did not think it was possible to turn Australia into a place that is as bad as the kind of place that people are fleeing, but that is what the government is attempting to do. The government is attempting to make life in these hellholes as bad, if not worse, as the place that they are fleeing, to put pressure on people to go back. Secondly, of course, for their own grubby domestic political purposes, by talking about asylum seekers in the same breath as serious criminals and lumping them all in together as the cause of any disturbances, they further dehumanise asylum seekers and refugees so that people end up—the government hope—thinking that their morally indefensible policies are somehow justified.
When you go into the detail of the bill it gets even worse. What is clear in sections 197BA (1) and (2) of this bill is that force can be used when the officers subjectively believe force is reasonably necessary. Prison guards and the AFP are held to a stricter test than this. You need more than just the guard believing it is necessary. The breadth of circumstances in which force can be used is too wide and wider than any other comparable area in this country. Force can be used to maintain good order in one of the detention centres. This can be interpreted very liberally and it can be used to move a detainee. In other words, to get a detainee from one place to another within a detention centre you can use force and you are immune from any review of how much force you have used—and I will come to that in a moment. This breaches the Attorney-General Department's principles on legislating coercive powers for non-police officers.
We also know that there are no safeguards in this legislation on restricting the use of force. One might expect, for example, legislation to say that force is only to be used as a last resort or that force is only to be used to avoid injury. It does not say that. Those kinds of safeguards are in departmental policy manuals, but there is nothing in the legislation. There is nothing in the legislation that says, 'Let's apply the same kind of safeguards that prison officers have before they use force.' If the purpose of this bill, as the government says, is to somehow clarify the use of force by Serco officers then this does the opposite. It gives them the right to use force almost unlimitedly in almost unlimited circumstances without any right of review. So, as I said, not only are there no safeguards restricting when it can be used but there is no limit to the extent of it. That potentially sanctions lethal force if it is exercised in good faith.
At a very minimum, weapons and the use of lethal force have to be ruled out in this bill. The fact that the government is saying in this legislation that there is no prohibition on private sector guards using a weapon or potentially killing someone if they are doing it with the aim of maintaining good order ought to send a shiver down the spine of everyone who believes in the rule of law in this country.
We are creating these camps where we say the law does not apply. Not only do the normal principles of fairness not apply but now the basic principle to live safely does not even apply. The government is saying: 'If you come to this country seeking our help as a refugee or asylum seeker, we will put you in a place where someone is legally entitled to kill you and we will not put any safeguards around that. In fact, we will sanction it. We do not mind that that person is employed by a private company. They are now entitled to use lethal force against you and entitled to use weapons against you. They are not limited to doing that in a situation where you have been a disturbance yourself; they can just do that if they think it is necessary to maintain good order. They can do that in the course of moving you from one place to another and they can do that to you if you are a child, a mother or a father.' That is the kind of place Australia will become if we pass this bill.
The people who have these broad-ranging powers to now assault and potentially kill refugees and asylum seekers do not have to be properly trained. The minister gets to determine what qualifications these people need to have to use force. That is not in this legislation. It will be a certificate—probably a certificate level II, the kind of certificate that a security guard perhaps gets. All of a sudden, from having done nothing more than the most minimal of training, you have a licence to kill. You have a licence to kill under this legislation.
We do not let prison guards or AFP officers do this so why are we letting private security guards now have the right to use lethal force without any prospect of review or oversight? Not only is there no review and not only is there not any training but the oversight is critical because the secretary can choose whether to investigate any complaint made to them and is under no obligation to take any action following any investigations that are made. Yes, it is the case that complaints can be made to the Ombudsman but that body has only recommendatory powers. In other words, there is now a new category of people who have the right to use potentially lethal force and the right to hurt people, including children and asylum seekers, and if they exercise that right there is nowhere you can go to complain about them. You can complain about the operations of our security forces, the AFP and the police—there are independent oversight bodies for those—but there are none for this. They can do whatever they like and get away with it.
What about if the family of someone who has been killed or hurt wants to take them to court? There are immunity provisions in this bill that basically now make legal the kind of thing that would put any one of us in jail. If anyone else exercised this kind of force on someone who had come here seeking a better life, they could be sued or prosecuted but instead this government says, under section 197BF, you get a free pass, you get a get out of jail free card. This legislation is not only not necessary; it speaks volumes about the moral depravity of this government and its failure to commit to basic principles of the rule of law.