Chapter 3
Committee view and recommendations
3.1
The Migration Amendment (Maintaining the Good Order of Immigration
Detention Facilities) Bill 2015 has been drafted in response to real and
pressing issues facing service providers in Australia's immigration detention
facilities. The need for persons working in detention centres to have greater
clarity about their powers to manage disturbances and maintain good order and safety
has been noted since at least 2011. The more recent change in the demographic
profile of the detainee population, with increasing risk of disturbances and
violent incidents, makes the case for this legislation now a matter of some
urgency.
3.2
The committee is grateful for the large number of submissions that it
received to the inquiry, many of them thoughtful and detailed. It has
considered the various concerns raised, most of which are discussed in chapter
2.
3.3
The committee notes the government's mandate to deliver border
protection policy settings that reflect the best interests of the Australian
people, and that the good order and operational efficiency of detention
facilities is manifestly essential to this goal. As the department reiterated
during the inquiry, '[w]hat we are trying to achieve is the maintenance of
standards of safety and security within detention centres that people are
entitled to and enjoy within the broader community'.[1]
3.4
The committee does not regard it as sufficient to leave service provider
staff in detention facilities to manage disturbances and violence without any protection
beyond the limited defensive powers provided under the common law. The Bill establishes
a clear authority, drawing upon comparative legislation and tailored to the
particular circumstances of immigration detention, for service providers in
detention facilities to exercise the powers necessary to protect themselves and
others, and to maintain an environment of security and safety for all who
reside and work there.
3.5
The committee believes that this legislation is necessary and
appropriate, and should proceed.
Recommendation 1
3.6
The committee recommends, subject to Recommendations 2, 3 and 4, that
the Bill be passed.
3.7
The committee is cognisant of the questions raised during the inquiry
around the tests both for the exercise of the use of force power under section
197BA, and the application of the bar on proceedings proposed in section 197BF.
The committee regards the existence of objective tests for the reasonableness
of the use of force as imperative to ensuring that the Bill is proportionate to
meet its objectives, and welcomes the department's clear and repeated assurance
that the Bill does not make the threshold for acceptable use of force a purely
subjective matter.
3.8
The committee notes some genuine concerns that the use of force powers
clarified by the Bill should remain consistent with Australia's customary
international obligations, and should operate within a framework of transparency
and accountability such that the Australian public would reasonably expect.
3.9
The committee urges the government to ask the department to elaborate on
its evidence, provided to the committee's public hearing on 16 April 2015, that
the department could consider implementing safeguards to specifically address
the circumstances of vulnerable persons and children.
Recommendation 2
3.10
The committee recommends that the Commonwealth Ombudsman's suggestion
that the Bill's operation should extend to cover 'situations where detainees
are in transit between facilities and in other locations' be given further
serious consideration by the government.
Recommendation 3
3.11
The committee recommends that the Explanatory Memorandum clarify the
extent of the use of force under section 197BA:
-
that reasonable force must only be used as a measure of last
resort. Conflict resolution (negotiation and de-escalation) must be considered
and used, wherever practicable, before force is employed;
-
that reasonable force must be used for the shortest amount of
time possible;
-
that reasonable force must not include cruel, inhuman or
degrading treatment; and
-
that force must not be used for the purposes of punishment.
3.12
The committee was concerned to satisfy itself that the training and
qualifications required of authorised officers vested with this power are
adequate to ensure its responsible use. On this point the committee welcomes
the department's detailed advice and assurances as to the training that would
be provided to all service provider staff, and the department's commitment to
monitor the standards applied. The committee also welcomes the protections
provided to detention centre employees and contractors under the scheme
contemplated by the Bill.
3.13
The committee understands the rationale for providing a discretion to
the minister to review and amend the training and qualification requirements
from time to time, bearing in mind the importance of maintaining appropriate
standards and responding to changing needs. Nevertheless, as proposed during
the inquiry, it would give comfort to both the committee and the broader
community if those standards were publicly reported and accountable. A simple
mechanism to achieve this would be to classify ministerial determinations in
this area as legislative instruments, thereby ensuring publication and
parliamentary scrutiny of any proposed changes.
Recommendation 4
3.14
The committee recommends that the government remove the word 'not' from subsection
197BA(8) of the Bill, in order to provide that a ministerial determination made
under subsection (7) is a legislative instrument.
Senator the
Hon Ian Macdonald
Chair
Navigation: Previous Page | Contents | Next Page