Dissenting report by the Australian Greens
Introduction
1.1
The Senate inquiry into the Migration Amendment (Maintaining the Good
Order of Immigration Detention Facilities) Bill 2015 revealed a deluge of
concerns from the community, human rights advocates and legal experts. This
Bill confers excessive immunities and powers upon authorised officers without
adequate safeguards. The government has not been able to ensure asylum seekers
are treated appropriately inside detention centres as matters stand; since only
23 February 2015 there have been 15 sexual assaults in the detention network,
two involving children and 259 assaults of a non-sexual nature, 11 involving
children. There have also been numerous well-publicised incidents of guards
beating asylum seekers in Manus Island and Nauru.
1.2
We also know that there have been at least a dozen requests by the media
for access to detention centres in the current financial year and that all 12
of these requests have been refused by the department. In addition, the Border
Force Act 2015 now means that any staff who dare speak out over abuse can
be jailed for two years. Detention centre staff are also subject to strict
confidentiality clauses in their contracts. Given this extreme level of
secrecy, there is no way we can trust that those employed will be able to use
their increased powers responsibly.
1.3
The Australian Greens acknowledge the great concern raised by members of
the community and experts in the sector, and for the reasons outlined below, do
not support the passage of this Bill.
Excessive and unjustified powers
1.4
The amendments proposed by this Bill state in subsections 197BA(1) and
(2) that force may be used whenever officers believe the force is 'reasonably
necessary'. This is a low standard and relies upon an authorised officer's
subjective belief. Prison guards and Australian Federal Police are subject to a
stricter objective standard.
1.5
The breadth of circumstances in which force may be exercised is also too
wide. Using force to 'maintain good order' may be interpreted generously,
particularly in combination with the proposed subjective test. These measures
also remove the right to peaceful protest from detainees because force may be
used to move them within the detention centre.
1.6
Further, the proposed authorised level of force breaches the principles
on legislating coercive powers for non-police officers developed by the
Attorney-General’s Department in A Guide to Framing Commonwealth Offences,
Infringement Notices and Enforcement Powers.
No safeguards restricting use of force
1.7
This Bill authorises force without any safeguards such as employing the
use of force only as a last resort or avoiding injury wherever possible. While
departmental policy manuals may include some such safeguards, they are too
important not to be enshrined in statute.
1.8
Of particular concern is how these changes will affect vulnerable
groups, including women, children and people with a disability. This Bill does
not contain any protections or exceptions for interactions with vulnerable
individuals.
No limit to the extent of force
1.9
Under this Bill there is no limit to the extent of force permissible. As
a consequence, these amendments sanction lethal force, if exercised in 'good
faith'.
1.10
Additionally, in its submission the Refugee Advice and Casework Service
noted its concern that the Bill 'does not limit the introduction of weapons and
may allow their use if deemed necessary to maintain good behaviour'.[1]
1.11
The use of weapons and lethal force should be explicitly ruled out by
the legislation.
Mixing criminals with asylum seekers
1.12
The government has acknowledged that the rise in the number of
disturbances in immigration detention facilities is due to the increased number
of criminals housed in the centres. This is a problem of the government’s own
making and asylum seekers should not be subjected to measures aimed at
criminals convicted of serious offences.
1.13
However, the majority of people who will be subject to these changes are
asylum seekers, the bulk of whom are subsequently found to be genuine refugees.
Detention with criminals is cruel and unfair for asylum seekers, and in clear
contravention of UNHCR guidelines. The simplest, most humane and most effective
way to maintain order in detention centres is to remove convicted criminals
from them. Alternatively, the Government could cease subjecting asylum seekers
to prolonged, indefinite detention.
Insufficient training
1.14
The proposed amendments in subsections 197BA(6) and (7) permit the
minister to determine the level of qualifications needed by officers to use
force. Such determinations would not be legislative instruments and therefore
would not be disallowable by Parliament.[2]
1.15
The Explanatory Memorandum indicates that the government intends for the
required qualification to be Certificate Level II in Security Operations. This
qualification is the bare minimum required of doormen or bouncers in NSW,
Victoria and WA. In Queensland, this qualification would not be sufficient for
a bouncer.
1.16
Further, the Certificate II takes a mere 16 days to complete. In contrast,
prison guards receive a minimum of 10-14 weeks of instruction, followed by a
further six months of training on the job. The training requirements for police
officers are even more stringent. Yet, under this Bill the government is
effectively sanctioning officers with less training to use any amount of force
they see fit in response to virtually any situation they deem warranted,
without imposing legislative safeguards.
1.17
In light of some attitudes expressed in social media by guards employed
by DIBP contractors, this insufficient level of training is particularly
concerning. Further, immigration detention facility officers have a history of
employing excessive force. For example, the Asylum Seeker Resource Centre
records numerous serious incidents when officers have abused their existing
power and employed excessive force.[3]
Insufficient oversight
1.18
The proposed complaints mechanisms in sections 197BB-197BE are grossly
inadequate given this Bill will permit officers to exercise power
disproportionate to their level of training. These sections, whereby complaints
can be made to the Secretary, who has discretion as to whether or not to
investigate, also do not oblige the Secretary to act following any
investigations conducted.
1.19
Clearly, there is a lack of independence and no clear path requiring the
implementation of changes identified on review. While complaints may still be
made to the Ombudsman or the Australian Human Rights Commission, these bodies
only have recommendatory powers and possess limited resources.
1.20
Further, access to these bodies is limited for asylum seekers,
particularly given the recent removal of the Immigration Advice and Application
Assistance Scheme (IAAAS) and the new regime limiting access and visiting protocols
for advocates in Maribyrnong Detention Centre. The Bill mandates that the
Secretary provide assistance to complainants under the oversight procedures
within this Bill, but no such assistance is required for external bodies’
complaint mechanisms.
1.21
An independent and stand-alone body with the resources to investigate
allegations of excessive use of force and the power to discipline officers and
direct changes in the protocols should be established.
Excessive and unjustified immunities
1.22
The amendments proposed by this Bill in section 197BF confer complete
immunity from legal action against both the Commonwealth and those acting on
its behalf where the use of force has been 'exercised in good faith'. This
amendment is inappropriate, particularly given that the Commonwealth does not
have this immunity in relation to the actions of Australian Federal Police
officers.
1.23
As noted by the Law Council of Australia in its submission:
[S]howing bad faith is a very high threshold which involves
more than negligence or recklessness, but in effect a dishonest mind.
Admissions are generally unattainable, as it would be sufficient for the
perpetrator to say 'I thought it was necessary'.[4]
1.24
This unacceptably high threshold is at odds with the use of force being
a measure of last resort.
Media access
1.25
Currently journalists are not permitted to access detention centres and
the department is under no obligation to provide reasons for refusing access.
Allowing journalists into detention centres has no bearing on national security.
This lack of transparency and accountability is unacceptable in a liberal
democracy like Australia.
Conclusion
1.26
This Bill confers disproportionate and excessive powers on unqualified
guards without sufficient restrictions on the use of force or allowing for
adequate oversight. There are other more proportionate responses that would
clarify the extent to which immigration detention centre officers may employ
force.
1.27
This Bill also carries with it the very real likelihood of guards
abusing these unchecked powers and heaping further misery upon asylum seekers.
1.28
The Australian Greens acknowledge the legal experts' and the community's
grave concerns regarding the implications of this Bill and for the reasons
stated above, do not support the passage of this Bill.
1.29
Giving unfettered powers to untrained guards to treat vulnerable people
however they want under a culture of secrecy and silence will inevitably lead
to people's rights being abused. The government has done nothing to earn the
trust of the public or the Parliament to show that these powers are needed or
will be managed properly.
Recommendation 1
1.30
The Australian Greens recommend that the Senate reject the Bill.
Recommendation 2
1.31
The Australian Greens recommend that the Migration Act 1958 be
amended to allow media access to detention centres and to require the
department to publish reasons for rejecting reasonable requests for access.
Senator
Sarah Hanson-Young
Senator for
South Australia
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