Wednesday, 13 May 2015
Migration Amendment (Maintaining the Good Order of Immigration Detention Facilities) Bill 2015; Second Reading
The Migration Amendment (Maintaining the Good Order of Immigration Detention Facilities) Bill 2015 seeks to define and regulate the use of force in detention facilities by amending the Migration Act 1958. The use of force in facilities such as Villawood and Maribyrnong is currently undefined and unregulated by any statute and therefore operates under the common law. Labor supports the general intent of this bill, however we have a number of concerns regarding the specific provisions of it. These concerns are shared by the Australian Human Rights Commission, which provided a comprehensive submission to the Senate inquiry into this bill which is currently underway.
The Human Rights Commission submission makes nine recommendations which seek to address its concerns with the bill and Labor is now proposing to move amendments to the bill to give effect to those recommendations. At the outset, let me say that, in the event these amendments do not pass, Labor will not be in a position to support the bill. I do say again, however, that Labor supports the underlying premise of this bill: to put in place a legislative framework for the use of reasonable force in detention facilities rather than allowing the use of force to continue to operate under the common law.
Operating under the common law means that the officers employed in detention centres, either as Commonwealth employees or as employees of detention service providers, have the same common law powers to deal with public order disturbances as do private citizens. It is considered undesirable, both by the government and by the staff working in the detention facilities, for reliance on the common law to continue. The fundamental problem with using the common law in this context is that it is very difficult to determine, at the time the decision on whether to use force or not has to be made, whether it is reasonable in the circumstances. Often the answer to that question only becomes apparent after the event. This obviously leaves employees in an uncertain and unsatisfactory position. Furthermore, the common law is problematic in the context of managing large public disturbances such as riots—nor does it cover common scenarios such as preventing the destruction of property or transporting detainees within the facilities.
This bill is intended to provide clarity around the circumstances in which reasonable force can be used in detention facilities and to provide a regulatory framework to support that—including mandatory staff qualifications and training to ensure the safety and protection of both the detainees and staff. Uncertainty as to when staff may act when confronted with public order disturbances was a subject that was considered in the independent review conducted in 2011 by Dr Allan Hawke AC and Ms Helen Williams AO into the incidents at the Christmas Island and Villawood detention centres. The Hawke-Williams report recommended that there be clear articulation of the responsibility for public order management between the department, the detention service provider, the Australian Federal Police and other police forces that may attend an immigration detention facility.
This bill is intended to clearly outline the circumstances in which an authorised officer may use reasonable force and also includes provisions to explicitly prevent the use of reasonable force in certain cases. However, Labor believes that, as currently defined in the bill, the fundamental power to use reasonable force is both too subjective and too broad. I will therefore later be moving amendments to include a clear, objective test of reasonableness of, and necessity for, the use of force. The Human Rights Commission has also recommended that the government provide the parliament with clarification of whether this bill is intended to authorise employees of contracted detention facility service providers to use lethal force and, if so, what controls and limits will be put in place to ensure that the right to life in this circumstance is adequately protected. I support this recommendation and Labor calls on the minister to provide this clarity before the bill is passed by the parliament.
The bill also refines the definition of an authorised officer within the Migration Act to ensure that a person working in a detention facility will not be allowed to be approved as an authorised officer who can utilise reasonable force unless they meet the training and qualifications requirements. I note, however, that the bill itself does not include any provisions which specify the level of training and qualifications that will be required. This has been the subject of a number of submissions to the Senate inquiry into this bill. Labor will keep a keen eye on the final Senate committee report. That report may inform further action by Labor when this bill is ultimately debated in the other place.
Another key element of this bill is the implementation of a statutory complaint mechanism in relation to the use of reasonable force. These complaints will be investigated by the Secretary of the Department of Immigration and Border Projection, who will also have the power to transfer such complaints to, for example, the Commonwealth Ombudsman or the Australian Federal Police Commissioner. Complainants will still have the ability to make a complaint elsewhere directly—to, for example, the Australian Human Rights Commission, the Red Cross, the Commonwealth Ombudsman, the Minister for Immigration and Border Projection or police commissioners. While Labor welcomes the introduction of a complaints mechanism, we remain concerned that under this mechanism the secretary will have the discretion to conduct the investigation in any way he or she considers appropriate and to decide not to investigate the complaint at all if certain conditions are met. Furthermore, the bill does not specify what the outcome of these investigations may be, either in terms of the practical remedies for complainants or the disciplinary consequences for authorised officers and service providers.
We note that there is no proposal for there to be any independent oversight of the use of force in detention facilities or of the complaints process itself. So Labor remains concerned that these provisions may deny fairness to complainants. This concern was shared by the Human Rights Commission and, accordingly, I will be moving amendments to address this aspect of the bill.
Finally, Labor has concerns regarding proposed section 197BF, which provides the Commonwealth and those acting on behalf of the Commonwealth—such as detention centre service providers—with immunity from legal action in cases where, apparently, the use of force was reasonable and exercised in good faith. It is worthy of note that, while police officers have protection from legal action, the Commonwealth itself does remain liable in respect of actions undertaken by an Australian Federal Police member or projective services officer. We make this observation: denying people their right to sue is no small matter. If a person believes they have a legitimate reason to seek damages, they should not be denied their day in court. The Human Rights Commission is also concerned about these aspects of the bill and noted that the existing provisions do not make it sufficiently clear that there are two criteria that must be satisfied in order for immunity to be obtained, nor has sufficient justification been provided for the Commonwealth itself to have a separate immunity from litigation over and above that provided to the authorised officer. Labor will therefore move amendments to this section of the bill as well.
In summary, Labor does support the overall intent of this bill but believes there are a number of areas which require amendment. Accordingly, in its current form, Labor cannot support the bill, but Labor will seek to have this bill considered in detail.