Migration Amendment Bill speech in Parliament

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.


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