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.
I welcome this chance to speak on the Migration Amendment (Maintaining the Good Order of Immigration Detention Facilities) Bill 2015, because I remember back in 2011 receiving many emails relating to riots and wilful damage to the detention centres on Christmas Island and also at Villawood in Sydney. Following those incidents, the previous government implemented an independent review that reported on 31 August 2011. Then, the Department of Immigration and Citizenship reported on the implementation of the recommendations in September 2012. Since that time, it has been determined that there is cause enough for specific legislative action, and that is why we are here today for this debate.
I will go into the specifics later, but I would say that the riots and the damage done offended many of my constituents. Obviously, taxpayers are unhappy when they can see their tax dollars going up in smoke on the nightly news, and so I am not surprised there was such a reaction to the events in 2011. The excuse for this lawlessness, from the advocates and those who committed these crimes, was allegedly frustration. Those responsible were not the victims; it was the taxpayers who were the victims in this, and I have no sympathy for those who bypassed the system to arrive here illegally. As we know from any look at the UNHCR website, there are offices and representatives around the world. The UNHCR can assess the validity of a person's claim to be a refugee and acknowledge them as such. Then that person can be provided with some support and wait for the chance to be resettled. I have spoken about that being the experience of many refugees that I know, and that is the way the system works. It is an effective system that enables a fair means of processing people based on need.
Of course, since the previous government changed the policy in 2008, thousands of boats and many thousands of people have chosen not to use that UNHCR system. Instead, they have raised the money to bypass that effective and fair system, by buying airlines tickets to Indonesia, travelling to people smugglers and again paying them to get a place on a boat. That boat then sets out to Australia, rejoicing in being 'intercepted' by the Australian Navy, before being detained and processed. That was the way it was between 2008 and the change of government in 2013. While that false and broken system was taking place, the refugee intake in Australia became all about cash and resources, not about the needs of the most desperate in refugee camps.
In 2011, there were many people that had paid to come to Australia by airline and then boat. Some were being detained on Christmas Island and at Villawood. Obviously, they had expected to be released into the community and were frustrated because they had been led to believe that would happen. Although they were detained, the conditions were infinitely better than in the refugee camps that those people chose to bypass because of their strong financial situation. It was, however, true that due to the policy approach by the then federal government, the numbers coming by boat continued to increase, and this led to overcrowding on Christmas Island and elsewhere.
I do reiterate that when you look at the density of the huts at refugee camps such as Mae La and Umpiem Mai on the Burma/Thailand border—these two are high density places—in those camps the differences are stark compared to immigration detention in Australia. Receiving your rations once a month in Mae La in the form of a bag of rice and other supplements is far more difficult than attending the detention centre mess tent at each mealtime to receive a meal already cooked for you. I would also say that the health centres in immigration detention centres actually have mattresses, rather than a piece of wood to lie on, as they do in the refugee camps I have been to and seen. The point that I am making, of course, is that conditions in Australian detention centres at Villawood or on Christmas Island are infinitely better than in a refugee camp elsewhere in the world.
That being said, I would imagine that if a person was led to believe that—through their outlay of some $12,000 per person in the form of a one-way airline ticket through Dubai, Doha or elsewhere to Indonesia, and then their fee to people smugglers—they would be quickly living in Australia, then they would feel aggrieved and even frustrated if they spent some time in immigration detention. I do, however, have no sympathy for them. They would have known that what they were doing was not official, and was therefore wrong. I think that, in spite of the overcrowding, the conditions were far better than for those who remained in refugee camps, who they, therefore, disadvantaged by their actions. I reserve my sympathy for the men, women and children that I have seen living in more desperate conditions in the refugee camps at Mae La and Umpiem Mai in Thailand.
For all those refugee advocates, human rights commissioners and others who wish to end immigration detention and again welcome those coming by boat, I suggest that they reassess their priorities with a trip to the real world of refugee camps. In that world, people do not have the money to go and buy an airline ticket, check out the duty-free options in Dubai and pay people smugglers. It is the people stuck in refugee camps that deserve our sympathy.
Obviously the boats have been stopped now and we do not have many of the types of problems that existed in 2011. Nevertheless, we need to address the problem of how agencies and contractors cope with incidents of disorder and criminality while protecting people and the property of the taxpayer.
I will turn now to the detail that is provided in this legislation. It is the case that, to provide the means to protect the life, health and safety of any person inside an immigration detention facility and to maintain order in the facility, this bill will allow an authorised person to use reasonable force to achieve this. The powers will apply in mainland Australia and on Christmas Island. The only persons who can be so authorised are those who have completed the training and qualification requirements as determined in writing by the minister. The need to use force is important because there is a wide range of persons that are held in the onshore immigration detention centres, and that can include known or alleged criminals capable of or suspected to be capable of violent acts. Such a capacity poses a threat to the staff and other persons in detention. The need is clear. This bill is therefore about providing a safe and effective system of immigration detention in order to provide those working in our detention facilities with the ability to protect the life, health or safety of any person and to maintain the good order, peace or security within an immigration facility.
In many ways I was surprised to learn that, without this bill, staff of detention centres would be able to rely only on the common law to exercise reasonable force to defend themselves or to protect others from harm. That is quite a limitation. In such an important area of national administration, leaving things up to common law is not right. Specific legislative controls and determination is far more appropriate. There is no doubt that staff members will be faced with the threat of harm to themselves and to detainees and with the chance of self-harm as well. As the events of 2011 demonstrated, there is also the risk of escape and damage to or destruction of Commonwealth property. These powers are also required to facilitate the movement of detainees and to maintain good order in a detention facility, including where there may be other persons visiting or inside the facility.
The bill, however, does bring with it preclusions from reasonable force, such as barring the ability to give nourishment, causing greater indignity than is necessary or causing grievous bodily harm, unless it is necessary to protect the life of another person or to protect another person from serious injury. There will also be a statutory complaints mechanism allowing complaints about the exercise of force. That may be to the secretary, but also it may be to the police or the ombudsman.
In conclusion, I look upon this bill as the means to ensure that all those organisations or agencies have the tools to provide good order in an immigration detention facility, as well as knowing who is responsible and when a threat requires the intervention of the police. This bill provides clarity and good lines of demarcation.
I look upon immigration detention as an important part of an effective and fair immigration system. It will be better when the numbers to be detained have returned to the situation where small facilities are required in the capitals for the handful of people who have overstayed visas or are being deported for criminal reasons and that is all. I think we will get back to that in the future. We will get back to those circumstances because this coalition government has sent a very clear message that our humanitarian intake is for those who apply offshore. That message is being received and that is why the boats have stopped. It remains a great shame that the so-called refugee advocates, most of the opposition, I suspect, and even a Human Rights Commissioner want to restore a system where using the cash you have to fly to Indonesia and then get on a boat is the criteria for being accepted here. It is outrageous and a disgrace that the needs of those in refugee camps was put behind those with cash.
For those who remain in immigration detention, it is through such a bill that good order and safety will be maintained. I think Australians have had enough of their tax dollars being thrown away through riots, disorder and damage caused by people who should have come the right way. This bill will help stop these problems in the future, and I absolutely endorse it.
I rise to make my contribution to the debate on the Migration Amendment (Maintaining the Good Order of Immigration Detention Facilities) Bill 2015. My contribution is in support of the amendments moved by the shadow minister. The large part of my contribution will touch on the four substantive matters that are the subject of those amendments. Unlike the previous speaker, I will concern my remarks largely with the bill before us rather than making general reflections on the public policy issues said to be the subject of this legislation.
This is deeply concerning legislation. It is legislation that should not be enacted into law without very significant amendment. Indeed, the bill which is before us fails on its own terms. That is to say that it does not address, much less solve, the problem it purports to be concerned with. It carries very grave concerns for the human rights of vulnerable people in our care. As the Kaldor Centre said in their submission to the Senate inquiry which is presently underway, this bill creates significant risk that Australia's international obligations will be violated, including obligations under the International Covenant on Civil and Political Rights and the convention against torture. It confers very, very broad and discretionary powers on individual employees of contractors, with very limited legislative safeguards to ensure that such powers will be exercised responsibly. It does not contain clear criteria about when and how force may be used and it does not provide for effective accountability mechanisms. These are very grave concerns.
Real questions in this bill arise on matters of form and substance. Ultimately, when considering the legislation before us and the purpose it is intended to serve, my view is that, while it well may be appropriate and in the interests of detainees, workers and the broader community to provide for a statutory framework for the use of force within immigration detention facilities, the framework which is presently proposed here cannot be adopted. It does not adequately define or limit how force may be used. This is compounded by inadequate scrutiny mechanisms and extremely broad restrictions on liability, for which there is no warrant. There are also real concerns about the failure to effectively provide for the training of authorised officers—those employees of Serco or other contracting parties in the future—to be able to discharge their duties given the extent of the responsibilities, including the use of force.
I note that this bill has been referred to the Senate Legal and Constitutional Affairs Legislation Committee. While this inquiry is yet to be finalised, the submissions and evidence to it clearly demonstrate some fundamental deficiencies in this legislation. The justification for this legislation, in the view of the minister in his second reading speech, in any event rests on the Hawke-Williams review. This is flimsy at best. Indeed, it is a fig leaf. The major issues of relevance in that review's recommendations are not touched on by the legislation we debate today. That review, which was concerned with serious disturbances in two facilities in 2011, recommended that the department articulate more clearly the responsibility of public order management. That is not a recommendation that I would disagree with, but this is a long way from coercive powers, wide-ranging restrictions and a partial bar on litigation regarding the exercise of those powers.
Let us be clear. Other recommendations of the Hawke-Williams report went to these concerns and have been implemented. These matters were also the subject of detailed consideration in March 2012 by the Joint Select Committee on Australia's Immigration Detention Network. As I understand it, there remained a question as to whether a statutory change was warranted in respect of clarifying the powers of employees of Serco, and advice was to have been sought in this regard. It remains to me at this stage entirely unclear what advice, if any, has been received, but I do note that none is referred to in the minister's second reading speech.
Fundamentally, no justification can be found in support of the central proposition contained in this bill that greater powers should be granted for authorised officers to use force. The powers provided in the bill as it stands are novel. It is unclear what other role or function they have been modelled on. They are considerably wider, in my view, than those given to police. How can this be appropriate? Critically, given that the one compelling rationale for codification of powers would be to provide certainty for all parties, this is fundamentally undermined by the subjective elements provided for and which must be rejected. That is the matter dealt with by the amendments moved by the shadow minister for immigration. It is almost impossible to conceive of a public policy rationale consistent with the introduction of this subjective standard.
Recently there have been shocking revelations about abuse in offshore immigration detention facilities and there have been a number of serious incidents in those facilities—which are the subject of the bill we are debating now. Many of these incidents, as I understand it, have resulted in litigation. These are serious matters which go not only to rights in the abstract but to some of the most fundamental human rights—those rights covered by the ICCPR and the convention against torture. We have seen vulnerable human beings subjected to abuse that is quite shocking. As I said earlier, that is not an argument against codification of powers, but it is a clear warning to make sure we get any such codification right and to ensure we provide for appropriate scrutiny.
The bill as it stands does not do that. That is why the opposition has had regard to the submission of the Human Rights Commission, which touches upon four critical failings in the legislation as it stands. These are, firstly, how the bill deals with the question of reasonableness and necessity for the use of force, in particular the inclusion of a subjective element; secondly, limitations to be applied on the use of force; thirdly, the complaints provisions, which are inadequate and do not provide for sufficient independence; and, lastly, the issue of the imposition of a partial bar against litigation in the bill.
I will touch briefly on each of the AHRC's four concerns in turn, but first I wanted to note briefly that I have also been assisted in my consideration of this legislation by the submission of United Voice, the union representing the authorised officers. Not only United Voice but a number of witnesses in the Senate process raised the issue of training for authorised officers. While the bill does propose to insert a provision that prevents an officer from being confirmed unless the officer satisfies training and qualification requirements determined by the minister, those qualifications are not presently of a very high standard, particularly having regard to the high level of powers or in comparison with people in other fields of endeavour—police officers and prison officers, for example—who have analogous powers. I am concerned that the present certification requirement, a Certificate II in Security Operations, represents inadequate training for officers who would be authorised to use force—particularly when, significantly, the use of force is to be assessed in respect of the subjective judgement of those officers rather than against objective criteria. In addition to those four substantive concerns picked up by the Human Rights Commission in their submission, these training issues are very significant.
I will now go through the AHRC's concerns in the order I raised them earlier. Firstly, Labor believes there should be a fully objective test of reasonableness and necessity applied to determining when force may be used. The currently proposed threshold for determining when force may be used is subjective and significantly lower than that which applies to the Australian Federal Police. It is proposed by the opposition that section 197BA(1) be amended to provide for an objective threshold test to deal with that concern. Our straightforward amendment is entirely consistent with the objective of codifying powers to provide certainty for officers, detainees and indeed the general community.
Our second substantive amendment goes to limitation of the use of force. The bill, as it is presently drafted, includes proposed provisions to prevent the use of force in specific circumstances. However, the Human Rights Commission has recommended, and Labor concurs, that the legislation be amended to add an objective test of reasonableness and necessity to the limitations on the use of force. The amendment to section 197BA(5) deals with this concern—moving from the standard of a 'reasonable belief' of the authorised officers to a test of 'necessary and reasonable in the circumstances'.
I note, as the Human Rights Commission has also noted, that some of the most significant limits on the use of force are referred to in the explanatory memorandum to the bill as matters the department would include in policies and procedures. It seems to me that these limits, particularly regarding the question of excessive force, should be included in the legislation, and so amendments are provided to give clarity in that regard and specifically to address the use of reasonable force against children. Obviously this is a deep concern in the community—the treatment of children in our care in detention facilities. This is a matter which has been touched upon, obviously, most recently in the Moss report in respect of offshore facilities, but of course we are concerned with some of the most vulnerable people who might be in our care and in our responsibility. So more prescription in the legislation around the use of excessive force would appear to be consistent with the purposes of codification and would, I would hope, be acceptable to the government.
Thirdly, there is the issue of the complaints mechanism. It is true that the bill as drafted puts in place a statutory complaints mechanism. Again, however, it is not much of a complaints mechanism, and a number of submitters to the Senate inquiry have raised concerns going to the fact that the secretary of the department would have discretion to conduct the investigation in an unfettered manner, in any way he or she considers appropriate, and indeed to decide not to investigate a complaint at all if certain conditions are met. Furthermore, in terms of certainty, the bill does not specify what the outcome of such investigations may be in terms of practical remedies for complainants and, indeed, disciplinary consequences for authorised officers and those employing them or engaging them. There is no proposal for there to be any independent oversight of the use of force or, indeed, of the complaints procedure itself.
So there is the amendment to proposed section 197BB(4)—or, rather, to introduce a new subsection following that to provide for the Commonwealth Ombudsman to be notified in writing when a complaint is received and to be given the power and resources to review the administration of the secretary's investigation of complaints and report to parliament on an annual basis about the comprehensiveness and adequacy of the processes used by the secretary. Again, this is the least we could expect given the nature of the powers we are talking about—powers to apply force to other human beings.
Lastly, I turn to the question of the bar on litigation. Proposed section 197BF of the bill would place a partial bar on the institution or, indeed, the continuation of proceedings in any Australian court against the Commonwealth in relation to the use of reasonable force where the use of reasonable force was exercised in good faith. This is a very serious matter at a couple of levels. Firstly, the existing provision does not make it sufficiently clear that there are two criteria to be satisfied in order for this immunity to be obtained: firstly, that the use of force must not exceed what is authorised under the substantive provision and that use of force must have been exercised in good faith. More fundamentally than this, there is no real justification—there is no argument that has been advanced—for the proposition that the Commonwealth itself should have a separate immunity from litigation. I touched earlier upon the fact that there has been significant litigation in respect of matters which may be the subject of these powers. It would appear to me to be highly likely that such litigation is on foot and may be affected, and people's rights may be curtailed by the institution of this proceeding. So I am strongly of the view that an amendment must be put in place to deal with the clarification of the bar and to make clear that there be no distinct immunity for the Commonwealth from litigation in respect of the treatment of vulnerable people in our care.
The amendments going to these four substantive issues must be adopted if this bill is to be enacted into law.
I am very pleased to speak today on the Migration Amendment (Maintaining the Good Order of Immigration Detention Facilities) Bill 2015. This could be called another 'cleaning up the Labor mess' bill, because what we are doing is tidying up something that the Labor Party in office left in a shambolic state. Remember that 800 boats and 50,000 people arrived under their watch. Just to remind the House, when the Labor Party took over in 2007, there were four people in detention as a result of coming by boat. By the time Labor had left, there were tens of thousands of people. They are still being dealt with in the Australian community because Labor put them there and tried to forget about them.
I recall that before Kevin Rudd won the election in 2007 we were criticised for upgrading the Christmas Island detention facility. The Labor Party said, 'It won't be needed. It won't even get full.' They ended up with thousands of people there. What did they then have to do? They had to go and build detention centres all over Australia to deal with them. Let's try to remember a few of them. They opened up Curtin. They opened up Scherger. They opened up Inverbrackie. They even tried one down in Tasmania. In Perth, besides the one at the airport, they opened up one called Yongah Hill in Northam. They were putting people out in Leonora and Laverton. They were dropping them all over the country like confetti to house the massive numbers of people coming unlawfully to Australia by boat. Is there any wonder that their system got out of control?
What we are doing today and what this bill is doing today is tidying up Labor's mess. We are going to make sure that the workers in those facilities get some protection. The Labor Party used to be a party for the workers. Now they are a party that just uses the workers and does not care about their safety. Listening to the member opposite a moment ago—and I am sure, looking at the speakers list, that the rest of them will be the same—you can tell that they are more interested in the welfare of those who are detained than the welfare of the workers at the facilities. They are worrying about whether the law gives them enough protection and ability to report and that sort of thing. I will get onto Villawood shortly so that we can talk about the sort of people who have been housed in these facilities and what they did to those facilities. The coalition on this side of the parliament is interested in looking after the workers who maintain law and order and the care of people in detention facilities.
We now have a situation where our onshore immigration detention facilities have a number of high-risk people coming into their care. Which was the first party to start a detention centre? It was the Labor Party under Gerry Hand. Gerry Hand, the immigration minister at the time, initiated the first detention facility in Australia at Port Hedland, which I have visited. We are meant to have a bipartisan approach on the detention of those who arrive unlawfully in this country. We saw that enhanced and increased at the last election to the extent that, when Kevin Rudd came back as Prime Minister, we ended up with our overseas Pacific solution being copied again in Nauru and Manus Island. So let's not be too shy about who has the moral high ground here. This is the policy that those opposite rejected and then reinstated because it works. By the way, we are now seeing a massive number of questions from those in Europe at the moment asking us, 'How did you stop the boats when we are seeing all these people arriving at Lampedusa in the Italian territory from Tunisia and Libya and drowning at sea?' They do not want to go through the same thing that the Labor Party did when they were in charge of this country with people drowning at sea.
Getting back to the detention facilities, there is a high number of high-risk people who are being housed in those. For the people who were coming through unlawfully by boat during the Labor Party's watch, it was pretty obvious. You could see that some of them had old bullet wounds. They did not look very deprived to me. They were wearing Rolex watches, gold chains and designer glasses. These people were not humanitarian entrants under the real definition of the term. If you recall, the character test was not even being instituted. We had a number of people on a boat off Darwin who lit the boat up. Our sailors had to go on board and try to rescue the people. Five of them were inquired into and found to have been behind setting the boat alight and yet they still got visas under the Labor Party's watch. What sort of character test was that?
So here we are looking after the workers in these detention centres and putting some rules around them, because at the moment it is just a very grey area.
It was a very chaotic approach—unparalleled in this country—in terms of the men and women and Customs and Border Protection officials that work in our onshore detention facilities. But you do not have to take my word for it; you only have to look at the Hawke-Williams report. For the benefit of the House, the Hawke-Williams report is the Independent review of the incidents at the Christmas Island Immigration Detention Centre and Villawood Immigration Detention Centre. It was commissioned by Labor and conducted by Dr Allan Hawke AC and Ms Helen Williams AO in 2011. So their own report is what I am quoting from. It is a damning chronicle of policy and administrative failures on the part of members opposite—who I am sure will sit there today shunning responsibility—which has become the Labor norm in this House when it comes to these immigration issues. We have cleaned it up, as you know. How long is it since we have had anyone arrive by boat? Since the last election, I think there has been about one boat—two if we try and stretch our imagination.
The Hawke-Williams report makes it clear that overcrowding, poor security and surges in asylum-seeker arrivals overwhelmed the detention centre network, and they were the main drivers behind the riots at Christmas Island and Villawood detention centres. Specifically, the report found that the constant expansion of the Christmas Island detention facility resulted in a corresponding decline in security. In other words, it was overcrowded. So much for not using it! It was filled to the brim and overflowing. No wonder they were trying to get over the fence! Consequently, asylum seekers breached its perimeter and sparked days of rioting during which staff were assaulted. The detainees stole cars, torched buildings, smashed CCTV cameras and used cement blocks, mop handles and aerosol cans as weapons against those looking after them in these detention centres, trying to keep them inside the razor wire. I will correct that: it was not even razor wire. That was what those over there used to say. It was actually just a perimeter fence which was being guarded.
Well, when you get up, tell us where you have been. I have visited a whole lot of them, including those overseas as well. So I know what I am talking about.
The violence in this circumstance became so serious that some of the facility staff had to be rescued by the Australian Federal Police, who were ultimately forced to take control of the situation in the detention centres, because the security was so inadequate inside because staff were not sure what they were entitled to do to maintain law and order.
One month later, asylum seekers took to the rooftops of Villawood in Sydney and triggered riots during which facilities were burnt to the ground and firefighters were pelted with tiles. The firefighters were going in to try and put out the fires. Those lovely people that were coming here for a better life because they were so deprived in the countries that they came from overseas decided to burn down their accommodation. They were standing up there with mobile phones. Mr Rintoul from the Refugee Action Coalition and all these people were on the other side of the fence egging them on and talking to them on their mobile phones. They were supposedly unable to come off the roof, but they were ducking down to the toilet and all this sort of stuff. It was an absolute farce. You had the spectre of people lighting up a wheelie bin full of flammable material and dragging it through building after building setting them on fire, and nobody could stop them.
No wonder the Australian people became appalled at the way we were conducting our detention centres and border security in general. No wonder the Labor Party were tossed out at the last election. This was one of the major reasons that the Australian public lost faith in the previous government. It was not just because of the Rudd-Gillard-Rudd stuff; the public lost faith in them because they could not keep us safe and they could not secure our borders. They sit over there today and want to talk about those housed in there rather than those working in there. Well, there are a lot fewer people working there now, because there are not many of them there. We are actually closing them down gradually. Scherger has closed down. Curtin has closed down. Scott Morrison, the former immigration minister, spent a whole lot of time going around the country closing down facilities, and we have found out in this budget that we will be saving over $1 billion by doing so. We were willing to spend $1 billion on people who turned up unlawfully, but we did not get any help from the other side. We just had block after block in terms of trying to deal with this issue.
We also know that the Hawke-Williams report highlights that no-one knew who was responsible for the management during these riots. State police and emergency services were prevented from taking immediate action. Immigration detention service providers were unclear as to when staff may act to protect themselves and the detainees that they were looking after—because some of them got hurt in the fracas as well. And members opposite seemed to be more confused than anyone, because they had no answer for it.
In stark contrast we, as a coalition, were quite concerned. We were concerned that there was no agreement between the states and the Labor-led federal government about how to deal with detention centre riots, a sentiment that was echoed by the then Premier of New South Wales, Barry O'Farrell, because Villawood was on his watch. We were concerned when the then Minister for Immigration, the member for McMahon, had given no real indication to providers as to if and when they could act when confronted with situations like these. They just let it hang.
And most of all, we were concerned about the safety of the detainees, the staff and people in and around the detention centres—the people who had to live around the perimeter of these detention centres. Not all of them are remote. As we know, some people were very concerned. I, for one, cannot help but wonder if situations like this, where innocent people were seriously assaulted and millions of dollars of taxpayer money were wasted, could have been mitigated by the member for McMahon and his succession of other migration ministers on the other side if they had in any way been competent in their jobs. Obviously, they were not.
We know that the Labor Party is totally divided on this. There are those who would shut down detention centres tomorrow, even though it is the bipartisan view that detention should happen for those arriving illegally. I also remind them that it was the Labor Party which put the first detention centre in this country—Gerry Hand, immigration minister from the left of the Labor Party. We are all on the same page on this side; over there, they are very divided.
We do not want to see another riot situation. There is a good chance that we will not, because there are fewer and fewer people. As we know, we are taking the children out of detention. When we took government there were 2,000 children in detention—I think there are fewer than 100 now. We are dealing with the situation in a competent way.
This bill will amend the Migration Act to put in strong border protection and establish a safe and effective system of immigration detention. We are doing this because we believe we have an overriding responsibility not only to the detainees but to other people in our immigration detention facilities to ensure that they are free from harm. Therefore we must provide those working in our detention facilities with the tools they need to protect the life, health or safety of any person, and to maintain the good order, peace and security of the facility.
Certainly, the amendments in this bill address these issues that I touched on earlier—the ones that, as I said, the Labor Party never decided to address. The Christmas Island and Villawood riots most definitely highlighted uncertainty on the part of immigration detention service providers as to when staff may act and be able to confront these sorts of disturbances. This sentiment again, as I said, is also echoed in the Hawke-Williams report. For the benefit of the House, the report recommended that the Department of Immigration and Border Protection clearly articulate the responsibility of public order management between the department, the provider, the Australian Federal Police and other emergency services who may attend immigration detention facilities.
This means providing a legislative framework for the use of reasonable force within immigration detention facilities in Australia—quite reasonable, one would think, and yet we are getting prevarication from the other side. They say, 'Oh, we're a bit concerned about this; we're not happy with that.' Well, what is the matter with putting in place formal and legal parameters about how the workers—that the Labor Party thought about once—might be protected and what their rights and responsibilities are? This side of the House is interested in the welfare of the workers and their health and safety on the job. The other side are a bit ambivalent. They are not quite sure what they are going to do with this bill. The previous speaker wanted some amendments et cetera. I recommend this bill to the House. (Time expired)
I rise to speak on the Migration Amendment (Maintaining the Good Order of Immigration Detention Facilities) Bill 2015, a piece of legislation designed to insert a statutory framework into the Migration Act for the use of force in specified circumstances within Australian immigration detention facilities. I do not know about you; but, if I am flying home to Brisbane at the end of a week in parliament, I would like to think that the balance of probabilities is not good enough for that plane getting me safely back to Brisbane. I would like to think it would be beyond reasonable doubt, but that is not the world we live in. It is a world of power and privilege, and those who have means sometimes deny access to those means to others. That is the reality of the world with six billion or so people.
There are many refugees who are starving to death, suffering from the impact of climate change or—heaven forbid!—want to give their children a better life, and they have been on the move. Last time I checked, there were about 43 million, but since Syria and ISIS we are probably nudging 50 million people dislocated throughout the world. Of those 50 million or so, the number that can actually meet the definition of refugee under the UN convention is probably only about 13, 14 or 15 million.
And then let's look at the countries of the world that actually will take refugees, not just have refugees turn up on their border and take them in because they either have no choice or are humanitarian countries. Let's look at the number of countries that actually settle refugees under a program where they offer them support and do not just let them run free at the docks or the airport; they provide them support and say this is the American way, the Canadian way, the Dutch way, the Australian way or whatever to make a harmonious society. There are not that many. The countries that do this are basically the US first and then, effectively, Australia and Canada second and third, although both Australia and Canada have decreased their intake lately. Then after that there was pretty much daylight fourth and then the Scandinavian countries and a few others that took a few but no significant numbers—not enough to make a dent in the production line of refugees that war, famine, ignorance and misguided ideologies are visiting upon the planet.
So, whilst we would like to think there is an orderly queue everywhere and we can just process those who are in the worst hellhole—because obviously the UN High Commission for Refugees wants to take those from the worst hellhole, put them at the front of the 'queue' and then settle them, effectively, in the countries that will take them on. But I needed to get that moral equivalence out there first: remember, if you are starving to death, you are not classifiable as a refugee; you have to starve to death in the country of your choice unless wealthier countries give aid to you. A wealthy country like Australia gives at the moment, I think, about 22c for every $100 to the countries that are poorer than us. I think that is about go down to about 17c or 18c from last night with that latest $1 billion in cuts. So we are not giving a great deal of money as a nation to the worst countries in the world. As private individuals we are actually probably a little bit more generous. I would take an interjection from the member for Canberra. I think private individuals are probably a bit more generous than the government in terms of making a contribution.
So Australia is a nation, apart from Aboriginal and Torres Strait Islander peoples, based on refugees. Whether it be the Makassans, the Chinese, the Dutch, the French or the English, we have that history of people coming from around the world and settling in Australia. We have had big waves, obviously, after World War II and then other waves of refugees, particularly the Vietnamese. I think about 5,000 came on boats, and then a significant number came through refugee processing plants in settlement locations in Hong Kong and arrived by planes. Then we had a surge of maritime arrivals under Labor. It is a figure that those opposite will hammer on about, but the majority of those that arrived, like under the Howard government, were found to be people who meet the definition of refugees.
So we can harden our hearts. We do as politicians—or I have had to harden my heart in terms of the approach. Obviously, if you have the people who arrive being determined by the people smugglers rather than United Nations high commission employees making considered decisions about what the world's worst hellhole is, that is not a good set of circumstances. That is why my views on immigration changed particularly after being involved in the Christmas Island tragedy, where I had to see the footage of the refugees on the boat drowning. I realised we needed to do something rather than just having the status quo. On the recommendations of the Houston inquiry the Australian government changed its view, and we returned to offshore processing. It is not a perfect system, and obviously we need a set of circumstances where refugees are not being kicked to death, where refugees are being treated humanely, where refugees are being treated with respect rather than unfairly as a warning to other refugees. I know this of my circumstances: irrespective of the rules of the globe, if my children were in dire straits, if my children were being harmed, I would do anything, like any parent, to take my children to a better set of circumstances.
So this legislation before the chamber needs to be considered in light of the fact that the Commonwealth will always owe a non-delegable duty of care to immigration detainees. The Federal Court found this, and we need to make sure the Commonwealth always takes reasonable care of detainees because they cannot care for themselves, that there is medical care reasonably designed to meet their healthcare needs, including psychiatric care because obviously there is great stress associated with incarceration. The member for Canning said 'those sitting behind the razor wire', and it can be like that. I have friends in my electorate now, voters in my electorate now who had sat for four or five years behind razor wire. I know it was tough on them. They are now taxpaying Australians making a contribution, but it was a tough time for them.
Then we also need to remember that, irrespective of whether the Commonwealth contracts out its care or services to other companies, we are still obliged to see that care is taken via the contracts and the supervision of the contract and that there is still a requisite level of care provided by people with reasonable caring skill. This bill before the chamber gives authorised officers very wide powers. It provides that an authorised officer may use such reasonable force against any person or thing as the authorised officer reasonably believes is necessary to protect the life, health or safety of any person in an immigration detention facility.
We need to make sure there is a clear definition of reasonable force. This bill does not make a definition of reasonable force. The authorised officer is able to subjectively determine what the reasonable force might be. You might think that is okay but, like any good democracy, we need to look at the checks and balances because—whilst there are some circumstances in the legislation—we need to closely monitor what that reasonable force might be. What was the assessment that said reasonable force was necessary? I know that in the United States we have seen problems with police officers in circumstances where it would appear they have used their weapons unnecessarily, or used what they considered to be reasonable force in an unreasonable set of circumstances. Sworn officers of the AFP and our state police services are different to untrained law-enforcement officers. That might be the case in some of these facilities. The Parliamentary Joint Committee on Human Rights, when they looked at this, said that there are risks with empowering an authorised officer to use force against detainees in a way that may be incompatible with the prohibition on degrading treatment; they have already flagged some concerns. That is why the Labor Party, when looking at this legislation, have said we will keep our powder dry and look at what the Senate puts forward in a more detailed inquiry.
We will see what the Senate puts forward; basically, we will reserve our judgement and see what comes back from the Senate inquiry. I always have concerns when there are not checks and balances in the use of such power in immigration facilities. I might leave it there.
I have deep concerns about this bill, the Migration Amendment (Maintaining the Good Order of Immigration Detention Facilities) Bill 2015, which is yet another instalment in the government's efforts to become less accountable and to make asylum seekers' lives even more difficult and more precarious. The bill is being promoted by the government as a simple codification of the powers to use force that officers working in detention centres already have under the common law, in order to provide certainty around the scope of the power. We are thereby encouraged to see these powers, and the bar to litigation relating to the exercise of these powers, as unremarkable—as akin to the powers and protections afforded to police and prison officers. But this is not true, as I will discuss shortly.
In his second reading speech, the minister referred to the Hawke-Williams report of August 2011 into incidents at the Christmas Island detention centre and Villawood detention centre in his justification for introducing the bill. Yet, as noted by the Human Rights Commission, the Hawke-Williams report did not say it was necessary that Serco be given greater powers to use force. As also observed by the Parliamentary Joint Committee on Human Rights, the Hawke-Williams report contains no reference to the deficiencies of the common law regarding the use of force and it does not recommend the creation of a statutory use-of-force power for security guards in detention facilities. The bill permits guards to use reasonable force in a range of circumstances, including preventing action that disturbs the good order, peace or security of the facility. This provides an extremely broad authorisation and would seem to include the use of force as a pre-emptive measure and in situations of peaceful protest. The explanatory memorandum refers to the 'deterrence of disturbances'. The joint human rights committee noted that analogous state and territory legislation governing the use of force in prisons generally limits the use of force to preventing or quelling a riot or disturbance. The committee further observed that the bill lacks a number of safeguards that apply to analogous state and territory legislation governing the use of force in prisons. For example, there is no requirement that: force be used only as a last resort; force should be used only if the purposes to be achieved cannot be achieved in a manner not requiring the use of force; the infliction of injuries is to be avoided if possible; the use of force to protect a person from threat of harm applies only to an imminent threat; the use of force to prevent a person from damaging, destroying or interfering with property is permissible only if a person is in the process of damaging the property and, if not, there must be a reasonable apprehension of an immediate attack; and the use of force be limited to situations where the officer cannot otherwise protect him- or herself, or others, from harm. The human rights committee was scathing regarding the fact that guidance as to what constitutes reasonable force under the bill is to be set out in policy rather than legislation, and it observed that 'this is insufficient to provide a justification for limitations on human rights'.
The bill not only increases the power of guards to use force but also allows them to use such force as they subjectively believe is necessary, while police and correctional officers in prisons are generally held to an objective standard when assessing the reasonableness of their use of force. The Andrew and Renata Kaldor Centre for International Refugee Law and the Gilbert+Tobin Centre of Public Law at the University of New South Wales have stated:
The Explanatory Memorandum provides no compelling reason as to why a subjective, less well-defined test for when force may be used is appropriate in this context. Indeed, the broad range of instances to which the use of force applies provides a compelling reason as to why the test ought to be confined to cases where the use of force is objectively found to be reasonable and necessary in the circumstances.
The potential use of force on children was noted by the Human Rights Commission and other submitters to the Senate Legal and Constitutional Affairs Committee inquiry, including UNICEF Australia, which is particularly concerned that the bill does not provide guidance nor allow for consideration of the unique vulnerability of children in places of immigration detention. UNICEF observed that the forgotten children report of 2014, the UNHCR Beyond Detention 2014-19 strategy and a strong international evidence base indicate that locked detention settings cause serious harm to children at every stage of their development and maturation. In its submission, the Asylum Seeker Resource Centre very reasonably commented:
Given that there are numerous, very serious reported incidents where officers have abused their existing powers and used excessive force against children, women and men in detention, a broadening of powers with limited to no liability or oversight is greatly concerning and potentially very dangerous.
The bill not only provides immunity from current and future legal proceedings for guards who use excessive force in good faith but also removes any liability of the Commonwealth, which is not the case with police officers. This bar appears to place an unacceptable limit on what should be the right to an effective remedy by a person who is mistreated. I note that the Parliamentary Joint Committee on Human Rights, in its assessment of this aspect of the bill, believed that it 'removes the opportunity for an affected person to seek compensation in a broad range of circumstances.' Thus we see detention centre guards being given greater powers and protection than even police officers yet there is less oversight and accountability.
Professor Gillian Triggs, of the Human Rights Commission, noted in her oral submission:
Australia is of course bound by the International Covenant on Civil and Political Rights, which requires a remedy for those whose rights have been violated. If the use of force is excessive, the person responsible should be accountable before the courts. The bill's proposed section 197BF gives immunity to contract guards, even if the force used is excessive, so long as that force is used in good faith. I think we all understand that it is almost impossible to demonstrate bad faith.
I strongly urge that this proposal be revisited to ensure that immunity from prosecution be available only when the force used is within the statutory power and is not excessive based on an objective, not a hybrid or subjective, standard.
In its written submission the Human Rights Commission notes:
Further, there does not appear to be any justification for providing a separate immunity to the Commonwealth. The justification given by the Government for providing an immunity to authorised officers is to remove any reluctance they may have to using reasonable force to the extent they are authorised to do so. There does not appear to be any justification for providing an immunity that extends beyond the authorised officers who are exercising the relevant power.
Under the bill, the minister is required to set out in writing the training and qualifications that a guard must have to be considered 'authorised', but there is no detail as to what this would entail. The statement of compatibility with human rights suggests that the required training may include a Certificate II in Security Operations, or equivalent, within six months of starting work. The Joint Human Rights Committee stated:
It is not clear to the committee that this level of training, which is the same as is required by crowd controllers and security guards, is sufficient to ensure that IDSP officers exercise the proposed use of force powers compatibly with the right to life.
Clearly, an adequate level of training should be mandated in the bill or regulations for persons being granted the wide discretionary powers to use force under this bill. During the hearings conducted into the bill by the Senate Legal and Constitutional Affairs Committee, the department indicated in answer to questions put by Senator Sue Lines that the minister's training requirements would probably be conveyed to private security contractors by letter and that these letters would be commercial-in-confidence and thus not be subject to public, parliamentary or independent expert scrutiny.
The Australian Churches Refugee Taskforce has called for the training and qualification requirements to be legislated and analogous to relevant state and territory guidelines for the training and qualifications of those employed in corrective services. It also recommends that private contractors 'be regularly subjected to external and independent monitoring and oversight to ensure that Australia's international human rights obligations are being met.' The taskforce also challenges the adequacy of the complaints mechanism in the bill whereby complaints can be made to the secretary of the department, who has the sole discretion to decide whether and how to investigate them. The secretary may refer complaints to the Ombudsman but cannot provide any other remedy.
I note the Commonwealth Ombudsman's submission in September 2011 to the Joint Select Committee on Australia's Immigration Detention Network stated that:
The Ombudsman is also concerned about the use of force in detention centres and suggests that better monitoring and governance is required to ensure consistency, competency and integrity of the reporting of incidents as well as ongoing training to build the capacity for de-escalation of situations which lead to unrest in detention centres.
UNICEF Australia in its submission also points to a 2013 monitoring report of the Ombudsman which noted the high level of vulnerability of detainees and the high degree of control exercised over detainees by the department, which creates a situation of 'special dependence' and therefore the department has both 'a comprehensive duty of care for detainees' and 'a positive duty to take action to prevent harm from occurring'. UNICEF Australia particularly recommends, among other measures, the mandatory referral of complaints regarding the use of force against children to the Commonwealth Ombudsman.
The lack of oversight and accountability in a bill conferring broad powers upon barely trained guards to use force is extraordinary and indefensible, and I agree with those who question whether this is compatible with Australia's international law obligations to investigate and prosecute acts of torture and cruel, inhuman or degrading treatment and to provide effective remedies for violations of human rights. I also agree with those who contend that rather than introducing further punitive measures against asylum seekers, the government should be addressing the real problems in Australia's immigration detention system: the length and arbitrariness of time people are being held, overcrowding, poor living conditions, a lack of information about cases and a lack of access to legal assistance through the refugee determination process.
The Australian government must also respond meaningfully to the recent The forgotten children report of the Human Rights Commission into the abuse of children at Manus Island and Nauru, the inquiry into the circumstances of the death of Reza Berati—which goes squarely to the question of how the use of force is regulated and constrained—and the Moss review into sexual abuse at the Nauru detention centre. I note the summary by the Australian Lawyers Alliance, which states:
The nature of allegations raised in the Moss Review of sexual harassment, rape, trading sexual favours for marijuana and cigarettes and children being touched inappropriately, if proven, show that the Commonwealth has failed in its duty to take reasonable care of asylums seekers.
It is hard to consider a bill that puts forward greater powers for security guards to use force with little accountability when it appears that nothing meaningful is being done to address the serious issues that have already been reported in onshore and offshore facilities in terms of rape, prostitution, the sexual abuse of children and violence towards asylum seekers.
As I have argued before, the best protection and guarantee against abuse, against unreasonable use of force, and against other human rights violations would be the provision of properly framed independent oversight, both in Australian immigration detention facilities and, as a matter of urgency, in the offshore detention centres. In the absence of such oversight and supervision, the centres should be closed.
I rise to speak on the Migration Amendment (Maintaining the Good Order of Immigration Detention Facilities) Bill 2015. I would like to tell the House about an article that was in The Age on 14 February this year. It was entitled, 'Maribyrnong detention centre: growing "culture of excessive force"'. The journalists, Nick Toscano and Beau Donelly, reported as follows:
Government-contracted security officers have been investigated over a string of attacks on detainees inside Victoria's main immigration detention centre, with two guards recently sacked for serious misconduct.
They went on to report:
Officers say the violent clashes reflect a 'growing culture of excessive force' at the Maribyrnong Immigration Detention Centre in Melbourne's west, which is run on behalf of the federal government by private security firm Serco.
The report went on.
In talking about this bill it is really important to talk about what the real issues are in respect of detention centres and how private security firms that run those centres operate. Obviously, as a country, we have agreed to protect people who are fleeing persecution or perhaps fleeing torture or trauma back home. The question is, when people arrive here and ask for protection as refugees, what are we doing to keep them safe while they are waiting for us to assess whether or not their claim should be met? For example, once you set up a detention centre like the one that is referred to in that article, how are you actually going to make sure that people are kept safe?
The private sector companies that run those detention centres have a lot of responsibility. They have to care for people who have fled persecution, torture or trauma. A lot of people who are in that situation, obviously, are not in a particularly great state and have faced a lot of difficulty in their lives. We have to think really carefully about how you keep people safe while they are waiting for determination of their refugee status.
When looking at this bill, the question is really, 'What net effect will this bill have on the safety of people while they are waiting for the determination of their application for asylum?' This is not a border protection bill—we all know that both sides of politics favour strong protection and control of Australia's borders. The question is, having agreed voluntarily to help people when they seek our assistance, have a genuine fear of persecution or are coming under complementary protection measures, how do we make sure that they are kept safe?
Obviously, private companies have a lot of different incentives. These are for-profit entities that have government contracts to provide the facilities' management and, effectively, to have private sector guards involved in running detention centres. As businesses, the profit incentive is a very strong motivating incentive which they have and properly should have—as companies, they have obligations to shareholders to act in the best interests of the business. They also have regulatory obligations. Those regulatory obligations are very important in respect of keeping people safe. But those incentives pull in different ways.
It is really important that as well as regulation—and regulation is important—there be financial incentives that pull in the right direction. A clear financial incentive to keep people safe while you are looking after them is posed when, if you do not keep people safe, you are at risk. In other words, if there is a risk of being sued for a failure to keep people safe, that provides a strong financial incentive towards safety, security, better training of the private sector employee guards and better management of detention centres. Regulation is important in and of itself; it does, of course, mean that there should be strong and robust oversight and regulation of detention centres. But, in the real world, regulators often do not have the resources that they need in order to be 100 per cent effective, so you are much better off if there are also economic and financial incentives for operators to do the right thing.
To me this bill is really a financial and economic bill. It is a question about where risk lies. Should the risk lie with individual asylum seekers who have fled persecution, torture and trauma? Should they bear the risk, which is a physical risk, in the event that the detention centres are not run well? Alternatively, should it be the private providers who bear a proportion of the risk? Should it be the government that bears a proportion of the risk? Should it be the insurers of the private providers and the government that bear a proportion of the risk? That is currently the case. Because people can be sued if there are assaults, negligence or battery, or if injuries are caused, it is the insurers and of course the premium payers that are bearing some of the risk in respect of making sure that detention centres are run appropriately. That is important because, without that additional incentive, you can see how incentives might pull you the other way.
So I am very concerned that this bill, in effectively removing the right to sue from people who are being accommodated in detention centres—because that is what this bill does—the clear effect of this bill would be to make life less safe for people while they are under our care in immigration detention centres.
In responding to this bill, I want to speak specifically about section 197BF, which is the proposed provision that would provide an out clause for government and private providers from being sued. It is almost a complete blanket prohibition. Everyone in this place would know just how difficult it is for a plaintiff to prove an absence of good faith. Really, that is what the immunity seeks to do, although I will get to that shortly.
The question is, why is this even an issue? As I have just said, I have read to you a report from The Age in respect of concerns about the use of force in detention centres. There was an FOI request in 2013, and the response from the Department of Finance and Deregulation at the time indicated that 18 claims had been made by people housed in immigration detention in respect of breach of duty of care, negligence or breach of statutory duty. Those 18 had yet to be resolved at the time that that FOI response was given. I do not know whether there were any claims in financial year 2013-14 and, if so, whether or not those claims had been resolved.
Of course the existence of the ability to make those claims provides that financial incentive to providers to take every reasonable step possible to ensure the safety of the people housed within detention centres. This is a real issue. This bill poses a risk to the right to sue because of that immunity provision that I mentioned, proposed section 197BF.
It is very clear from the explanatory memorandum and the terms of the bill itself that there is a great big hole in the government's explanation and rationale for this bill when it comes to this immunity. In fact the Bills Digest even mentions:
No further information is provided in the Bill’s accompanying materials to substantiate or elaborate upon this claim.
The claim is the claim that without some degree of protection the immigration detention services provider may be reluctant to use reasonable force to protect a person or to contain a disturbance.
There is no explanation given in the materials about why the power provision, proposed section 197BA, would not be sufficient to meet that aim; why you would then need to go to the extraordinary step—and it is an extraordinary step—of section 197BF which would, as I have said, effectively deprive people of the right to sue. I say it is extraordinary because it is a similar sort of provision to that in section 75 of the Maritime Powers Act 2013. There was a somewhat similar provision in a now-repealed subsection—185(3AB)—of the Customs Act. But other than that, I have not had my attention drawn to any similar immunity provision of the kind that is now found in proposed section 197BF.
In fact, when you look at that repealed previous subsection that I mentioned it is actually slightly different in that it said that proceedings could not be instituted or continued where the person who had taken the action acted in good faith and used no more force than was authorised in subsection (3B). To be clear about the distinction: in that repealed example that I have given it was really clear that to rely on the immunity, the person who had exercised the force had to meet both requirements—the requirement of good faith and the requirement that the force used be no more than was authorised under the provision that was conferring the power to use the force in the first place.
But the proposed new section in this bill that we are talking about does not have that qualification. The question that is obvious to me is: why does the proposed section 197BF(1) explicitly require that for a person to rely on proposed section 197BF they must have used no more force than was authorised under proposed new section 197BA? That is such a blatant and obvious question to me, and it is quite surprising that the materials fail to deal with that question.
Obviously, it is not just me who has this concern; it is a concern that has been raised by the Australian Human Rights Commission in their submission and in the oral evidence by a Queen's Counsel who appeared at the Senate inquiry into the bill in his private capacity. It has also been raised by other people who were very concerned about the proposal, which is really about taking away the right to sue from asylum seekers.
I would be very strongly opposed to passing this bill in its current form because, to me, giving people the power to use reasonable force and then saying to asylum seekers and to people who are in detention centres, 'Even if the guard is negligent and you are injured; even if there is a breach of statutory duty; even if there is a breach of duty of care of any type; even if there is an assault; and even if there is a battery, you can't make a common-law claim because this provision effectively removes your right to do that.' That is terrible for the individual and it is also terrible for the broader economic and financial incentives around making sure that there is a financial reason—not just a moral and legal reason, which of course in and of themselves are both very strong reasons—for anyone who is a provider to ensure the safety of people under their care. I think that incentive is very important and so I would be very loathe to support any bill that took away that right to sue from these people.
To me, it is a question of human rights. It is a question of upholding the rule of law. In our democracy the rule of law is of great significance and importance. If we believe in the rule of law then we should certainly not be taking away rights to sue from people who have suffered assault, battery, breach of statutory duty or negligence leading to injury. That is the wrong approach. It is an inconsistent approach, in my view, with the way this country operates.
Of course it is not enough that people have a right to sue; there has to be access to justice as well. Access to justice is a very big question that has been grappled with in this place, in the Law Reform Commission and in the Productivity Commission most recently, with their report in respect of access to justice arrangements in this country. We do need to continue to improve access to justice for everyone, including the most vulnerable people in our society. It is hard to think of someone who could be more vulnerable than a person who was tortured in their home country and who is waiting for our protection. It is hard to think of someone who could be more vulnerable than someone who has fled persecution at home—a situation where they might be deprived of their liberty, where they might be at risk of death, where they might be at risk of torture and where they might be at risk of kidnapping back home. It is actually really hard to think of someone more vulnerable than the people in those detention centres who have those valid claims.
If we are serious about the rule of law, if we are serious about discharging our obligations and if we are serious about making sure, if we are going to have private providers—and I am as uncomfortable as the next person with the idea of for-profit-run immigration detention centres, but the fact is that they exist at the moment and we have to come to terms with that and manage that as well as we can—then there should be every possible incentive and every possible approach in place to ensure that it is in the interests of those providers and the interests of government for great training to be provided and for skilled guards to be in place—for those guards to know exactly where they stand, of course, but also for them to make sure that they use no more force than is reasonably necessary in the circumstances in resolving any issues and maintaining order. Of course maintaining order is really important, but it is no more important than maintaining safety and security for the people under our protection.
So, for those reasons I support the approach of amending the bill consistent with the Human Rights Commission's recommendations. Obviously, I have not touched on all of the issues raised by the Human Rights Commission in this address, but I have read their submission and I have read the transcript of Professor Triggs's oral evidence before the Senate inquiry in respect of the bill. I think that all of the points raised are very important and ought to be the subject of serious consideration in this place before any steps are taken to alter the rights of people who are under our protection.
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.
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.
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.
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.