Who guards the guards in Abbott's Australia?

On 25 February 2015 the Abbott Government presented a bill to the House of Representatives titled Migration Amendment (Maintaining the Good Order of Immigration Detention Facilities) Bill 2015.

This bill seeks to amend the Migration Act 1958 to allow a private company under contract and its immigration detention centre management team to use reasonable force against any person or thing an authorised employee reasonably believes is necessary to protect the life, health or safety of any person or to maintain the good order, peace or security of an immigration detention facility.

The Abbott Government has given itself a ‘get out of gaol free’ card if any such use of force results in serious injury to or death of an asylum seeker being held in detention:

197BF  Bar on proceedings relating to immigration detention facilities

             (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.

             (2)  This section has effect despite anything else in this Act or any other law.

             (3)  Nothing in this section is intended to affect the jurisdiction of the High Court under section 75 of the Constitution.

             (4)  In this section:

                   Commonwealth includes:

                     (a)  an officer of the Commonwealth; and

                     (b)  any other person acting on behalf of the Commonwealth.

The Explanatory Memorandum authorised by the Minister for Immigration and Border Protection, Peter Dutton, appears to extend this immunity from prosecution to include an authorised employee of the private company.

His explanation to Parliament on 25 February 2015 concerning the need for this bill included this statement:

In the absence of legislation, officers and staff of the detention services provider rely on common-law powers, as conferred on ordinary citizens, to exercise reasonable force when it is necessary to protect themselves and others from harm or threat of harm. The extent of this authority is, however, limited. Clearly, using reasonable force to manage issues of physical safety, good order, peace and security in an immigration detention facility is a matter for parliament to decide, not the common law.

On the other hand the Parliamentary Joint Committee on Human Rights considers that this bill engages and limits a number of rights, including the right to life; the prohibition against torture, cruel, inhuman or degrading treatment; the right to humane treatment in detention; and the right to freedom of assembly and worries that in relation to meeting human rights obligations under international law there may be inadequate oversight and control of private detention facilities by the Australian government.

The Australian Human Rights Commission submitted 9 recommendations to the Committee, including recommendations that: a) the Committee seek clarification from the Government as to whether it intends to authorise employees of contracted detention 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 is adequately protected; b) private contractors use excessive force, both the contractors and the Commonwealth should be legally accountable; and c) new provisions be added after s 197BA(5) dealing with the limitations on the use of force in relation to children.

Further concerns were articulated in The Guardian on 16 April 2015:

The president of the Australian Human Rights Commission, Gillian Triggs, said the bar on proceedings would make it “virtually impossible” to bring forward an action, because of the difficulty of demonstrating bad faith in legal proceedings.

“Senior courts have ... explained the very high threshold that you must prove to demonstrate bad faith. It’s very hard to show a subjective intent of bad faith of a serving officer acting in the course of their employment,” Triggs said.

She said the language in the bill surrounding the scope of the powers “need to be significantly tightened up.”

Triggs added that if the powers were to be included into the Migration Act then the limits to the exercise of the power should also be clearly spelt out.

Gabrielle Appleby, associate professor at UNSW, said “the individuals authorised under this bill are not department officers, they are contractors”.

Appleby raised concerns about the training requirements for guards, which are not expressly set out in the bill and will instead be left up to the minister. The explanatory memorandum suggests the standards will be a certificate II in security operations, which are a base level training requirement for security operations.

“The determination by the minister is not a disallowable instrument. This means it’s not subject to parliamentary scrutiny,” she said.

While the Asylum Seeker Resource Centre issued a media release on 2 April 2015 which stated in part:

“These proposed laws will give officers in detention centres more power to use force than are granted to prison officers,” CEO Kon Karapanagiotidis said today. “They also introduce a subjective test where officers themselves get to decide if violence is warranted. When they do use excessive force, they will effectively be immune from legal action except in the rarest of circumstances. This virtually gives them the green light to use force without fear of repercussions. “There is no reasonable basis for granting broad, sweeping powers to authorised officers to use force indiscriminately. These laws are unnecessary and they are dangerous. “It is another example of the Government’s ongoing push for unchecked power when it comes to their treatment of asylum seekers.”

                                                                                                                                

There is legitimate cause for concern with regard to this bill, as excessive use of force is already an issue in detention centres.

The Age 24 February 2015:

...a Fairfax Media investigation that revealed three reported attacks on detainees housed at the centre in December and January alone, and internal concerns among the workforce about a growing culture of brutality.

Confidential documents from within private security firm Serco, which runs the centre on behalf of the Australian government, detail incidents including a middle-aged Chinese woman allegedly being kicked in the stomach by a guard and a Sri Lankan man being punched in the face.

The Commonwealth Ombudsman has launched an inquiry into a third case in which several officers allegedly harmed a detainee who was handcuffed behind his back and held down on his stomach for 45 minutes. The Turkish national said he struggled to breathe and was denied repeated requests for water.

Fairfax Media this month revealed Serco sacked two of its guards after internal reviews into violent clashes at Maribyrnong.

Serco officers said the spate of attacks reflected a disturbing "prison camp" culture coming from hard-line managers, who were sanctioning the use of brutal force.

On Tuesday, the Australian Immigration Department confirmed new allegations raised against Serco guards were being "taken seriously and escalated through appropriate channels"......

Dozens of complaints have been lodged by inmates at the Maribyrnong centre in recent years, mostly about staff harassment and bullying. But insiders say physical assaults have become regular occurrences since Serco transferred a number of ex-corrections managers out of the prison system into the detention centre late last year.

One said detainees were being "literally bashed" and "viciously assaulted", while another described how senior staff were condoning the use of excessive force on volatile detainees......

The provisions of the Migration Amendment (Maintaining the Good Order of Immigration Detention Facilities) Bill 2015 have been referred to the Senate Legal and Constitutional Affairs Legislation Committee for inquiry and report by 12 May 2015.