Labor Senators' dissenting report
Key issues
1.1
Labor Senators oppose the passage of the Migration Amendment
(Maintaining the Good Order of Immigration Detention Facilities) Bill 2015 (the
Bill) in its current form.
1.2
The Bill is its current form creates ambiguity in respect of what
constitutes 'reasonableness' and fails to provide, or to increase, clarity for
officers at detention centres.
1.3
The Bill in its current form contains a bar to legal proceedings that is
unwarranted and inappropriate.
1.4
Labor Senators also hold concerns as to the training provided to and
required of detention centre officers in relation to the use of force, and far
below the standard expected by and of prison officers and police officers.
Legislating the use of force
1.5
The statement of compatibility references The Hawke-Williams Report,
cited in support of the need to allow an authorised officer to use reasonable
force and for that authority to be clear and objective. This report was an Independent
Review of the incidents at the Christmas Island Immigration Detention Centre
and Villawood Immigration Detention Centre. However the Parliamentary Joint
Committee on Human Rights in assessing the Bill stated:
Further, the committee notes that the Hawke-Williams Report,
which is cited in support of the stated objective of the measure, does not
contain any reference to the inadequacy of the common law regarding the use of
force and did not recommend creating a statutory use of force power for
employees of an IDSP. Rather, it focused on ensuring appropriate arrangements
to clarify the respective roles and responsibilities of managing security
between the department, the IDSP and the police; and recommended a protocol be
developed to support the hand-over of incidents to the police and consideration
be given whether the contract with the IDSP needed to be amended. The committee
therefore does not consider that the report provides evidence in support of the
measure as addressing a substantial or pressing concern.[1]
1.6
Labor Senators believe the Bill should aim to provide clarity as to the
use of force for authorised officers, rather than blanket authorisation for the
use of force.
1.7
The Australian Human Rights Commission makes nine recommendations which
it believes are necessary to provide clearly defined limits on the use of
force, and to ensure that the use of force is based on objective criteria of
necessity and reasonableness. Labor Senators assert that such defined limits
should be contained in the Migration Act 1958 (the Act) to achieve an
objective test of necessity and reasonableness currently lacking.
1.8
Similarly, Labor Senators recognise the submission of the Law Council of
Australia, who also saw merit in codifying the use of force by immigration
officers and Immigration Detention Service Providers (IDSPs), but considered:
... that the Bill’s proposed amendments depart from the
accepted standards of protection for asylum seekers in international and
domestic law, key rule of law principles and procedural fairness guarantees.[2]
1.9
The Law Council also suggests a number of amendments to the Bill,
similar to the Human Rights Commission, regarding an objective test, training,
safeguards, and the definition of reasonable force which, if legislated, would
improve objectivity around the use of force. The Law Council also further
outlined its recommendations with regard to this matter in its answer to a
question on notice, as below:
The use of the additional “reasonable” in subsection 197BA(1)
and the form of the drafting creates ambiguity as to the interpretation of the
provision, which can only be clarified by further interpretation of the
Explanatory Memorandum. Additionally, it could be confusing for immigration
detention service providers (IDSPs) as to how it should be interpreted in an
immigration detention facility. A more certain approach would be to adopt an
objective test as utilised in a number of corrective services Acts and
Regulations listed below...
Subsection 9CB(1) Corrections Act 1986 (Vic)
"A person authorised under section 9A(1A) or 9A(1B) to
exercise a function or power may, where necessary, use reasonable force to
compel a person who is deemed under Part 1A or section 9CAA to be in the
custody of the Chief Commissioner of Police to obey an order given by the
first-mentioned person in the exercise of that function or power."
Subsection 23(2) Corrections Act 1986 (Vic)
"A prison officer may where necessary use reasonable
force to compel a prisoner to obey an order given by the prison officer or by an
officer under this section."
Subsection 55E(1) Corrections Act 1986 (Vic)
"An escort officer may, where necessary, use reasonable
force to compel a prisoner to obey an order given by the escort officer in the
exercise of a function or power."
Section 86 Correctional Services Act 1982 (SA)
"Subject to this Act, an officer or employee of the
Department or a police officer employed in a correctional institution may, for
the purposes of exercising powers or discharging duties under this Act, use
such force against any person as is reasonably necessary in the circumstances
of the particular case."
Clause 131(1) Crimes (Administration of Sentences) Regulation
2014 (NSW)
"In dealing with an inmate, a correctional officer may
use no more force than is reasonably necessary in the circumstances, and the
infliction of injury on the inmate is to be avoided if at all possible."[3]
1.10
Labor Senators as such recommend that the Senate consider the amendments
to the Bill outlined in the submissions from the Human Rights Commission and
the Law Council to achieve an objective test on the use of force by immigration
officers and Immigration Detention Service Providers.
Bar to legal proceedings
1.11
The Bill contains, in proposed section 197BF, a bar on legal
proceedings.
Concern about the absence of a
clear rationale
1.12
The Bills Digest states, in relation to proposed section 197BF:
Though the Minister’s second reading speech does not identify
a clear rationale for the immunity, the Explanatory Memorandum clarifies that 'without
at least some degree of this kind of protection, employees of the immigration
detention services provider may be reluctant to use reasonable force to protect
a person or to contain a disturbance in an immigration detention facility'. No
further information is provided in the Bill’s accompanying materials to
substantiate or elaborate upon this claim.[4]
1.13
Labor Senators continue to hold significant reservations about the lack
of a clear rationale for the bar on proceedings.
1.14
Though there are other provisions of state and federal legislation that
authorise the use of force (i.e. provisions that are similar in effect to
proposed section 197BA), Labor Senators are aware of very few other provisions
similar in form or effect to proposed section 197BF.[5]
1.15
Without limiting the preceding comment, it is noted that Labor Senators
are unaware of any examples of provisions of state or territory legislation
which allow excessive force to be used without sanction provided that bad faith
cannot be used against that user of excess force.
1.16
In this respect, Associate Professor Gabrielle Appleby told the committee:
...there is no justification for such an unusual protection
provision in the context of immigration detention. Other statutes conferring
power to use reasonable force provide for personal protections or indemnities
for the officers but not the complete immunity we see in this bill.[6]
Concern about how the bar would
work
1.17
Repealed subsection 185(3AB) of the Customs Act 1901 prevented
proceedings from being 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)'.
1.18
That (now repealed) provision seems to have had the effect that to rely
on the provision to put an end to legal proceedings, the person who had
exercised the force had to meet both requirements:
-
the requirement of good faith; and
-
the requirement that the force was no more than was authorised
under the provision conferring the power to use force.
1.19
Yet proposed subsection 197BF(1) provides:
(1) No proceedings may be instituted or continued in any
court against the Commonwealth in relation to an exercise of power under
section 197BA if the power was exercised in good faith.
1.20
It is unclear why proposed subsection 197BF(1), unlike the analogous
(albeit now repealed) provision referred to above, does not explicitly require
that for a person to rely on section 197BF, they must have used no more force
than was authorised under new section 197BA.
1.21
The Australian Human Rights Commission submission made this point at
paragraphs 116 and 117. The Commission’s submission stated:
116. In the Commission’s view, s 197BF(1) does not currently
make it sufficiently clear that there are two criteria to be satisfied in order
for the immunity to be obtained:
a. the use of force by the authorised officer must not exceed
what is authorised by s 197BA; and
b. the power to use of force must be exercised in good faith.
117. In order to ensure that the first of those criteria is
made explicit, the Commission recommends an amendment to s 197BF.[7]
1.22
Associate Professor Appleby, and the Hon Mr Stephen Charles QC, also
raised concerns about the possible interpretation of section 197BF:
Senator LINES: Do you think—again in relation to
197BF—that, in order to rely on the proposed section 197BF, a person would have
to prove that they used no more force than was authorised under proposed
section 197BA?
Dr Appleby: I think this is one of the provisions
where there is not clarity. I think there are two ways of interpreting the
provision. One is that the force has to be authorised otherwise within the
bill, and another interpretation is: even if the force exceeds that which is
authorised, provided that it was used in good faith. Certainly, when I
initially read the provision, my interpretation was that it was the
latter—that, provided that good faith could be shown, and it is very difficult
to show bad faith, then the bar on proceedings would apply. As you have heard
today, that is a cause for serious concern.
Senator LINES: And that is your view, Mr Charles?
Mr Charles: Yes, it is. I agree entirely...[8]
1.23
Professor Triggs of the Human Rights Commission added, in her oral evidence:
...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...[9]
1.24
Given the foregoing, this provision is of significant concern to Labor
Senators.
Concern about the proposed separate
immunity for the Commonwealth
1.25
As the Human Rights Commission states in its submission:
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.[10]
1.26
Again, this issue is of significant concern for Labor Senators.
Existing claims
1.27
Labor Senators are concerned that the proposed section 197BF, in its
current form, would operate retrospectively, in that it would create a bar to existing
claims.
1.28
Labor Senators do not believe that it is appropriate for this Bill, if
passed, to deprive people of existing legal rights to make claims.
Training for authorised officers
1.29
A number of witnesses raised the issue of training for 'authorised officers'.
The Bill inserts a provision that prevents an officer from being confirmed as
an authorised officer unless the officer satisfies the training and
qualification requirements determined by the minister in writing. The
Bill also requires the minister to determine those qualifications and that
training in writing.
1.30
In its evidence the Department of Immigration and Border Protection was
not able to clarify the exact nature of the training, and officers of the
department seemed to be at odds with what was currently required, what would be
required into the future and how or who would deliver additional training,
whether or not it would be competency based and how the curriculum for this
additional training would be written and developed.[11]
1.31
Current officers are required to undertake a Certificate II in Security
Operations. This certificate is required for security officers who undertake
roles in the community, mainly around securing premises.
1.32
Labor Senators believe that this certificate represents inadequate
training under the current arrangements and certainly inadequate for officers
who under this Bill will be 'authorised to use force'.
1.33
When questioned, the department was unable to clearly state how the minister’s
requirements would be conveyed to a private contractor managing detention
centres. The department suggested it may form part of the contractual
arrangements and conceded that this contract would be unlikely to be available for
public scrutiny because of 'commercial in confidence' arrangements.
Senator LINES: What was
not clear this morning was that sometimes these matters are in regulation;
sometimes they are disallowable instruments. It seems that what the explanatory
memorandum is saying is that it is neither of those things. So will it be a letter
or will it be part of the contractual arrangements with a contractor? My first
question is: where will it be?
Ms de Veau: For the minister to make a determination, he will need to
make a decision. That decision will need to be recorded. For it to have any
impact and effectiveness it will need to be communicated.[12]
1.34
In further evidence Mr Outram indicated to the inquiry that the training
required by the minister would be outlined in the contract between the government
and the provider.
Mr Outram: It would be dealt with through the contract.
Senator LINES: So it
would be put into the contract?
Mr Outram: Absolutely.[13]
1.35
In answers to questions on notice, the department has stated that the
contract will not be publicly available.[14]
This means the training component associated with the use of force will not be
subject to public scrutiny nor is there any transparency or parliamentary
oversight.
1.36
In relation to the department’s submission as
to whether or not the training outlined in the submission was about current or
future training, in evidence before the committee the department indicated it
was both, and yet in questions on notice it then informed the inquiry that that
was a typographical error. This of course changes the whole intent of the
department's submission in relation to training and so we now have no evidence
before the inquiry on what will be required and how it will be delivered.
The third paragraph under section 2.6 'Training and
Qualifications' of the Department’s submission to the Committee contains a
typographical error. The word 'authorised' should be replaced with 'current' so
that the paragraph reads as follows:
'For current officers responsible
for the general safety of detainees the Department requires that they must hold
at least a Certificate Level II in Security Operations or equivalent...'[15]
1.37
The committee majority raises concerns in the report with regard to
officer training, but asserts that the department clarified this issue in its
evidence. This is simply not the case.
1.38
The department attempted to clarify the use of force, the
objective test and used the example of WA prison officers and Victoria Police:
Just
two matters if I might. There was some useful dialogue this morning around the
test that has been articulated for the use of force in 197BA(1). It is
important to understand that it is not entirely subjective and, like many of
these tests—and they vary from act to act—they generally balance an objective
component and a subjective component. So the drafting that has found its way
into 197BA(1) has the 'reasonable force' up-front. That is an objective
standard. That has to then be matched with a belief by the officer—it has to be
a reasonable belief—as to necessity. So a belief that is reasonable is also an
objective and subjective test. There were some comments made this morning that
that was out of kilter with all of the other comparable legislation. Can I just
indicate that there are actually a variety of ways that that has been
expressed, particularly as to whether the necessary component is front-ended so
that it is only objective. While some examples of that form of drafting were
given, there are two that are consistent with the way that we have drafted it.
The Western Australian Prisons Act provides for such force as is believed on
reasonable grounds to be necessary. That is fairly consistent with what we have
drafted. Equally, the Victorian Police use such force that is not
disproportionate as believed on reasonable grounds to be necessary. So, again,
that is a fairly similar form of drafting.[16]
1.39
Labor Senators also expressed dire concerns over the lack of appropriate
training for officers who would possess these powers should the Bill be passed.
The matrix below sets out the training requirements for WA Prison Officers and
Victoria Police against the future training requirements for officers
authorised to use force in detention centres:
|
Position
|
Prison
Officer (WA)
|
Police
Officer (Vic)
|
Detention
Centre Security - 1[17]
|
Detention
Centre Security - 2[18]
|
|
Qualification
|
Certificate
III in Correctional Practice (Custodial)
|
Diploma
of Public Safety
|
Certificate
II in Security Operations
|
Certificate
II in Security Operations
|
|
Course
Type
|
Department's
Academy in Bentley
|
Victoria
Police Academy
|
Perth
Security Training Academy
|
Varies
|
|
Intensive
Training Period
|
14
Weeks full time
|
33
weeks full time
|
12
days
|
2
days
|
|
Ongoing
On the Job Training/Probationary
|
6
month on-the-job probationary period
|
83
weeks
|
Unknown
|
Unknown
|
|
Total
Training Period
|
9
months
|
2
years, 3 months
|
Unknown
|
Unknown
|
1.40
As evidenced by the table above, a Certificate II in security operations
able to be obtained over a weekend is vastly inferior to what is required to be
a WA Prison Officer or a Victoria Police Officer.
Recommendation 1
1.41
Whilst Labor Senators note that the committee majority recommends that
the Explanatory Memorandum clarify the extent of the use of force under section
197BA, we believe that the concerns of the committee must be addressed in
legislation.
1.42 As such, Labor Senators recommend that this Bill not
be passed in its current form and recommend that amendments in line with those
outlined by the Australian Human Rights Commission and the Law Council of
Australia be proposed as part of an amended Bill, with particular focus on
achieving an objective test on the use of force by immigration officers and
Immigration Detention Service Providers.
Senator Catryna
Bilyk Senator Sue Lines
Senator for
Tasmania Senator for Western Australia
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