Wednesday, 13 May 2015
Migration Amendment (Maintaining the Good Order of Immigration Detention Facilities) Bill 2015; Second Reading
I want to thank members for their contributions to the second reading debate on the Migration Amendment (Maintaining the Good Order of Immigration Detention Facilities) Bill 2015. The government considers that safe and effective immigration detention policies and strong border security measures are not incompatible. The proposed amendments will confer powers on authorised officers to use such reasonable force against any person to protect the life, health or safety of any person in an immigration detention facility and maintain the peace, good order or security of that facility. The purpose of this bill is to strike a balance between maintaining the good order of the facility and the safety of the people within it and needing to ensure that any use of force within that facility is reasonable, proportionate and appropriate.
The amendments reflect the recommendations from an independent review of incidents at the Christmas Island and Villawood immigration detention centres in 2011. The review recommended that the Department of Immigration and Border Protection articulate more clearly the responsibility for public order management between the department, the detention service provider and any attending police. The presence of a number of high-risk detainees with behavioural challenges has the potential to jeopardise that safety, good order and security within the immigration detention facilities and the safety of all persons within those facilities. Recently some detainees have demonstrated a willingness to deliberately disrupt operations at a facility. Moreover, recent high-profile escapes, incidents of violence, allegations of abuse and disturbances have highlighted a noticeable shift in risks within the immigration detention environment.
To prevent any abuse of these powers, risk mitigation measures will be put in place ready for the implementation of this legislation. These measures include appropriate instructions and administrative arrangements to guide authorised officers in the use of reasonable force; the requirement for authorised officers to satisfy minimum training and qualification requirements in the use of reasonable force; establishment of agreed protocols in memoranda of understanding for the handover of responsibility between the parties dealing with disturbances in immigration detention facilities; and rigorous incident-reporting mechanisms to advise of all instances where force was used.
The proposed statutory complaints section of this bill is a procedural measure for complaints to the Secretary of the Department of Immigration and Border Protection about an authorised officer's exercise of power under this amendment. The bill provides for appropriate assistance to be given to a detainee who wishes to make a complaint should they require such assistance to formulate that complaint. A detainee may also choose to raise their concerns through other complaint mechanisms. For example, detainees may also complain directly to the Australian Human Rights Commission, the Red Cross, the Commonwealth Ombudsman, elected representatives, police, state welfare agencies, community groups and advocacy groups.
Turning now to some points that were raised in the debate on the bill, first, amendments have been suggested to provisions that provide for safeguards against subjecting a person to indignity and excessive force and the manner in which reasonable force should be used in immigration detention facilities. The bill as currently drafted provides an explicit safeguard against subjecting a person to greater indignity than the authorised officer reasonably believes is necessary in the circumstances. The bill as currently drafted provides that the force used must be reasonable force. Excessive force will always be beyond what is reasonable and would not be sanctioned by the provisions in the bill as currently drafted. The bill as drafted prohibits an authorised officer from doing anything that is likely to cause grievous bodily harm unless the authorised officer reasonably believes it is necessary to protect life or prevent serious injury. Grievous bodily harm, as defined in the Crimes Act, does not include lethal force. Let me make it quite clear that the bill does not sanction the use of lethal force.
The manner in which reasonable force is to be used in an immigration detention facility must be within the legislative boundaries provided in the bill. To ensure that this occurs in immigration detention facilities, the department will have in place policies and procedures reflected in the immigration detention service provider contract on the use of reasonable force within an immigration detention facility. These safeguards will ensure that force will be used only as a measure of last resort, must only be used for the shortest amount of time possible, must not include cruel, inhumane or degrading treatment, and must not be used for the purposes of punishment. These policies and procedures will be reinforced with comprehensive ongoing training for authorised officers. The department will consult with the Australian Federal Police on these governance arrangements regarding the use of reasonable force. The bill also provides that authorised officers must meet minimum standards of training and qualifications. A person cannot be an authorised officer unless he or she satisfies the training and qualification requirements determined by the minister in writing.
Third, amendments have been suggested to provisions relating to the role of the Commonwealth Ombudsman in the complaints process provided under the bill. The Office of the Commonwealth Ombudsman was consulted on the provisions of the bill regarding its role in the complaints process. The bill as currently drafted provides that the secretary may elect to refer or transfer a complaint to the Commonwealth Ombudsman. The department will work with the Office of the Commonwealth Ombudsman to develop protocols for these arrangements. While the bill provides for a complaints process, it does not restrict a person from making a complaint directly to another body, including the Ombudsman or a police force.
Finally, amendments have been proposed to the bar on proceedings in proposed section 197BF of the bill. Proposed section 197BF as currently drafted places a partial bar on the institution or continuation of proceedings in any Australian court against the Commonwealth in relation to the exercise of power under proposed section 197BA where the power was exercised in good faith. This does not, and is not intended to, bar all possible proceedings against the Commonwealth. If the use of reasonable force was not an exercise of the power under proposed section 197BA then it is not captured by the partial bar in proposed section 197BF, and court proceedings may be instituted or, indeed, continued—that is to say, if the force used was excessive in a criminal force or was unreasonable force, or the authorised officer did not reasonably believe the use of force was necessary, then the conduct would not be captured by the bar in proposed section 197BF. The partial bar is necessary to provide assurance to authorised officers that they will not be the subject of legal proceedings for undertaking their duties in accordance with the law.
I trust that this bill will have the support of members, most particularly those with an interest in ensuring the safety of all people in immigration detention facilities, and on that basis I commend the bill to the House.