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:
(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:
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.
