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Migration Amendment (Maintaining the Good Order of Immigration Detention Facilities) Bill 2015



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BILLS DIGEST NO. 86, 2014-15 23 MARCH 2015

Migration Amendment (Maintaining the Good Order of Immigration Detention Facilities) Bill 2015 Elibritt Karlsen Law and Bills Digest Section

Contents

Purpose of the Bill ............................................................... 3

Background ......................................................................... 3

Committee consideration .................................................... 5

Senate Legal and Constitutional Affairs Legislation Committee ............................................................................... 5

Senate Standing Committee for the Scrutiny of Bills .............. 5

Compatibility with Human Rights ............................................ 5

Policy position of non-government parties/independents ..... 6

Position of major interest groups ......................................... 6

Financial implications .......................................................... 6

Key issues and provisions..................................................... 6

Changing composition and culture within detention facilities .................................................................................... 6

The Government’s non-delegable duty of care ....................... 9

Reasonable force and defences at common law ................... 10

Proposed statutory use of force framework ......................... 11

Objective to subjective ........................................................ 12

Limitations on the exercise of power .................................. 12

Nourishment or fluids ....................................................... 13

Indignity and grievous bodily harm ................................... 13

Training and qualifications ................................................ 14

Statutory protection from civil and criminal liability ............. 14

Good faith ............................................................................ 15

Original jurisdiction of the High Court................................. 16

Complaints mechanisms ........................................................ 17

Date introduced: 25 February 2015

House: House of Representatives

Portfolio: Immigration and Border Protection

Commencement: Sections 1 to 3 upon Royal Assent. Schedule 1 commences on the earlier of a day to be fixed by proclamation or six months after Royal Assent.

Links: The links to the Bill, its Explanatory Memorandum and second reading speech can be found on the Bill’s home page, or through the Australian Parliament website.

When Bills have been passed and have received Royal Assent, they become Acts, which can be found at the ComLaw website.

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Independent scrutiny .......................................................... 18

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Purpose of the Bill The purpose of the Migration Amendment (Maintaining the Good Order of Immigration Detention Facilities) Bill 2015 (the Bill) is to insert a statutory framework into the Migration Act 1958 for the use of force in specified circumstances within Australian immigration detention facilities.1 It also sets out complaint mechanisms and inserts a bar on commencing legal proceedings against the Commonwealth unless the powers are not exercised in good faith (though the original jurisdiction of the High Court is expressly retained).2

Background The Minister for Immigration and Border Protection, Peter Dutton stated in his second reading speech that the amendments in this Bill were needed to address issues arising from ‘incidents at a number of immigration detention facilities, which highlighted uncertainty, on the part of the immigration detention service providers, as to when it may act when confronted with public order disturbances in immigration detention facilities’.3

The Minister referred to the Independent Review of the Incidents at the Christmas Island Immigration Detention Centre and Villawood Immigration Detention Centre (the Hawke-Williams report), conducted by Allan Hawke and Helen Williams in 2011, which ‘recommended that the Department of Immigration and Border Protection more clearly articulate the responsibility of public order management between the Department of Immigration and Border Protection, the immigration detention service provider [IDSP], the Australian Federal Police and other police forces who may attend an immigration detention facility’.4

The Parliamentary Joint Committee on Human Rights (JCHR) disputes that the report provides evidence in support of the measures contained in the Bill. It notes:

… 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.

5 [Footnotes omitted and emphasis added].

It is true that the Hawke-Williams report does not expressly recommend the key measures contained in this Bill. However, the report does relevantly note as follows:

The responsibility for providing Public Order Management during critical incidents was an issue of contention throughout 2010. Following the November 2009 incident, concerns were raised by both DIAC and the AFP about Serco’s capability in that regard. 6

Serco sought legal advice on the matter and advised DIAC that it did “not have the power or authority, either contractually or under any statute, to take measures to restore public order in detention centres.” DIAC subsequently agreed with that position, indicating that the schedule of incidents for which Serco is required to manage does not include this obligation and that the powers of the police are broader than those of Serco in dealing with significant disturbances. Curiously, DIAC went on to note its expectation that Serco would manage and contain all serious incidents likely to become violent. In early 2011, Serco restated its earlier position…

As both CIIDC [Christmas Island Immigration Detention Centre] and VIDC [Villawood Immigration Detention Centre] incidents demonstrate, however, particularly in the volatile environment currently faced by the immigration detention network, the application of a public order management response capability for both maintaining and

1. Migration Act 1958, accessed 20 March 2015. 2. The author would like to acknowledge the research assistance provided by Tyler Fox in the preparation of this Digest. 3. P Dutton, 'Second reading speech: Migration Amendment (Maintaining the Good Order of Immigration Detention Facilities) Bill 2015', House of Representatives, Debates, 25 February 2015, p. 1, accessed 10 March 2015.

4. A Hawke and H Williams, Independent review of the incidents at the Christmas Island Immigration Detention Centre and Villawood Immigration Detention Centre, 31 August 2011, accessed 19 March 2015. 5. Parliamentary Joint Committee on Human Rights, Twentieth report of the 44th Parliament, The Senate, 18 March 2015, p. 18, accessed 19 March 2015. 6. Serco is the IDSP.

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restoring public order, where necessary, can be essential, and roles and responsibilities, as well as the dividing line between the two, must be made clear.

Such capability requires personnel who: are adequately trained; possess relevant public order management qualifications; are legally authorised (under statute or otherwise) to engage in public order management, where necessary; and are appropriately resourced in proportion to the assessed risk at various facilities within the immigration detention network.

For each jurisdiction, personnel should also participate in regular joint exercises with relevant emergency response stakeholders and, given the inherent risks associated with the use of force within the context of a critical incident, the issue of legislative authority and appropriate controls is an important one. For critical incidents, the AFP or State and Territory police are best placed to fulfil this role, depending on the jurisdiction of the incident. For less critical incidents, Serco also has a role, but both the dividing line between the two, and the contractual responsibilities on Serco for providing good order capability, require clarification. [Footnotes omitted and emphasis added].

7

In September 2012 the former Government released its Report on Implementation of the Recommendations of the Independent Review of the Incidents at the Christmas Island Immigration Detention Centre and Villawood Immigration Detention Centre. In relation to recommendation fifteen of the Hawke-Williams report, which is relied on by the Minister for the current amendments, the former Government simply noted:

The department, Serco and law enforcement agencies have worked together to clearly articulate responsibility for public order. There has been greater involvement with the state and national police forces. The department has finalised MOU with Tasmania and the Northern Territory, and is in the process of finalising the remainder, to formalise the roles and responsibilities of State and Territory police. In those jurisdictions where MOU have not been signed, public order responsibilities and response arrangements are in place. Serco has established an Emergency Response Team that has been training with the AFP to better respond to public disorder situations. Serco have implemented a range of contingency plans across all sites, including appropriate escalation paths with emergency services and other detention service providers.

8

Some six months earlier (March 2012), the Joint Select Committee on Australia’s Immigration Detention Network had released a comprehensive report wherein it had noted that ‘Serco accepts and supports the strict limits on the powers that it may exercise in relation to detainees, particularly in relation to the use of force during serious disturbances’.9 It thus recommended that that the Government finalise a security protocol between Serco, the Australian Federal Police and local police in each state and territory, consistent with the findings of the Hawke-Williams Review.10

Though Coalition Senators and Members supported this recommendation by the majority, they also recommended in their dissenting report that the ‘Government seek advice on amendments and addition to the regulations under the Migration Act to clarify the responsibilities and powers of persons who operate detention centres around the limits on their obligations and powers in relation to use of force, to ensure the good order and control of immigration detention facilities’.11

In November 2012, the former Labor Government released its Response to Recommendations by the Joint Select Committee on Australia’s Immigration Detention Network. It accepted the Coalition Senators and Members dissenting recommendation and undertook to seek advice to determine whether statutory change were needed:

7. A Hawke and H Williams, Independent review of the incidents at the Christmas Island Immigration Detention Centre and Villawood Immigration Detention Centre, op. cit., p. 104. 8. Department of Immigration and Citizenship (DIAC), Report on implementation of the recommendations of the independent review of the incidents at the Christmas Island Immigration Detention Centre and Villawood Immigration Detention Centre, September 2012, p. 11, accessed

19 March 2015. 9. Parliamentary Joint Select Committee on Australia’s Immigration Detention Network, Final report, Senate, Canberra, March 2012, p. 72. 10. Ibid., p. 73. 11. Coalition Members and Senators, Dissenting report, Parliamentary Joint Select Committee on Australia’s Immigration Detention Network,

Senate, Canberra, March 2012, pp. 225-226, accessed 20 March 2015.

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The Minister for Immigration and Citizenship is seeking advice to determine whether there is a need to amend the Migration Act 1958 and regulations to allow the use of reasonable force to maintain the good order of an immigration detention facility where reasonable belief exists regarding a direct threat to the physical safety of an officer, a detainee or a third party.

The Department of Immigration and Citizenship is also well advanced in the negotiation of a Memorandum of Understanding (MoU) with the Australian Federal Police and state and territory law enforcement agencies for the provision of policing services to immigration detention facilities.

The Detention Service Provider (Serco) is not a party to the MoU. However, its roles and responsibilities when responding to an incident are clearly articulated within an Implementation Protocol attached to the MoU. 12

[Emphasis added].

It should also be recalled that the former Government introduced statutory changes in the aftermath of the 2011 unrest (see the Migration Amendment (Strengthening the Character Test and Other Provisions) Bill 2011) to punish and deter criminal behaviour in immigration detention centres and to create a more significant disincentive to engage in destructive behaviour of the kind seen at the Christmas Island Immigration Centre in March 2011 and the Villawood Immigration Detention Centre in April 2011.13

Committee consideration Senate Legal and Constitutional Affairs Legislation Committee The provisions of the Bill have been referred to the Senate Legal and Constitutional Affairs Legislation Committee for inquiry and report by 12 May 2015. Details of the inquiry are at the inquiry webpage.14

Senate Standing Committee for the Scrutiny of Bills The Senate Standing Committee for the Scrutiny of Bills considered the Bill in its Alert Digest No. 3 of 2015, tabled in Parliament on 18 March 2015.15 The views and concerns of the Committee in relation to specific aspects of the Bill are outlined below under the heading ‘Key issues and provisions’.

Compatibility with Human Rights As required under Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth), the Government has assessed the Bill’s compatibility with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of that Act. The Government considers that the Bill is compatible.16

The Parliamentary Joint Committee on Human Rights has also considered the Bill in its Twentieth Report of the 44th Parliament, tabled in Parliament on 18 March 2015.17 In contrast, the JCHR considered the Bill engaged and limited a number of rights. It concluded that:

• the conferral of power on IDSP [Immigration Detention Services Provider] officers to use force in immigration detention facilities on the basis of their reasonable belief engages and limits the right to life…the statement of compatibility has not, for the purposes of international human rights law, established that the measure is aimed at achieving a legitimate objective and, if so, whether it may be regarded as a proportionate means of achieving that objective

• the use of force provisions in the Bill as currently drafted are insufficiently circumscribed and risk empowering an authorised officer to use force against detainees in a way that may be incompatible with the prohibition on degrading treatment

12. Australian Government, Government response to recommendations by the Joint Select Committee on Australia’s Immigration Detention Network, November 2012, accessed 19 March 2015. 13. Parliament of Australia, ‘Migration Amendment (Strengthening the Character Test and Other Provisions) Bill 2011 homepage', Australian Parliament website, accessed 20 March 2015. 14. Senate Legal and Constitutional Affairs Legislation Committee, Migration Amendment (Maintaining the Good Order of Immigration Detention

Facilities) Bill 2015 [Provisions], The Senate, Canberra, accessed 19 March 2015. 15. Senate Standing Committee for the Scrutiny of Bills, Alert Digest No. 3 of 2015, The Senate, 18 March 2015, accessed 19 March 2015. 16. The Statement of Compatibility with Human Rights can be found at page 18 of the Explanatory Memorandum to the Bill. 17. Parliamentary Joint Committee on Human Rights, op. cit.

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• the basis for monitoring the use of force provisions and the bar on criminal proceedings in proposed section 197BF may limit the obligation to investigate and prosecute acts of torture, cruel, inhuman or degrading treatment

• the use of force provisions limit the right to humane treatment in detention… the statement of compatibility does not sufficiently justify that limitation for the purpose of international human rights law

• the use of force provisions limit the right to freedom of association…the statement of compatibility does not justify that limitation for the purpose of international human rights law and

• the bar on proceedings relating to the use of force in immigration detention facilities limits the right to an effective remedy…the statement of compatibility does not address the limitation on the right to an effective remedy.18

The JCHR has sought the advice of the Minister for Immigration and Border Protection in relation to these matters. Further views and concerns of the Committee in relation to specific aspects of the Bill are outlined below under the heading ‘Key issues and provisions’.

Policy position of non-government parties/independents The policy position of non-government parties/independents was not known at the time of writing.

Position of major interest groups The policy position of major interest groups was not known at the time of writing.

Financial implications The Explanatory Memorandum states that the financial impact of the Bill will be low and that any costs associated with its implementation will be met from within existing resources of the Department of Immigration and Border Protection (DIBP).19

Key issues and provisions Item 5 inserts proposed Division 7B ‘Immigration detention facilities’ into Part 2 of the Migration Act.20 This division contains proposed sections 197BA to 197BG which together will regulate the force that may be used by authorised officers in detention facilities, set out statutory complaint mechanisms and contain a bar on initiating legal proceedings in certain circumstances.

Proposed subsection 197BA(3) defines ‘immigration detention facility’ in a manner which confines the operation of proposed section 197BA to immigration detention facilities in Australia (including Christmas Island). The types of facilities captured by the definition include detention centres, alternative places of detention, and residential housing.21

Changing composition and culture within detention facilities As of February 2015, there were approximately 2,000 people in immigration detention facilities across Australia.22 There are currently a total of five immigration detention centres (IDCs) in Australia: one in Victoria, one in New South Wales, two in Western Australia, and one on Christmas Island. Approximately 1,300 people (65 per cent) are in detention because they arrived unlawfully, while some 700 people (35 per cent) are in detention because they have had their visas cancelled for over staying or breaching their visa conditions.23

18. Ibid., pp. 15-31. 19. Explanatory Memorandum, Migration Amendment (Maintaining the Good Order of Immigration Detention Facilities) Bill 2015, p. 2, accessed 10 March 2015. 20. Migration Act 1958, accessed 20 March 2015. 21. See definition of ‘immigration detention’ in subsection 5(1) Migration Act. 22. There were also some 1,750 people detained in regional processing centres in Papua New Guinea and the Republic of Nauru: Department of

Immigration and Border Protection (DIBP), ‘Immigration detention and community statistics summary’, DIBP website, 28 February 2015’, p. 5, accessed 20 March 2015. 23. Department of Immigration and Border Protection (DIBP), ‘Immigration detention and community statistics summary’, DIBP website, 28 February 2015’, p. 5, accessed 20 March 2015.

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As at February 2015, the average period of time people have been detained is approximately one year (58 weeks) while more than 400 people have spent up to two years in detention and another 235 people have spent in excess of two years in detention.24

While the number of people in immigration detention has historically fluctuated, the following graph indicates the immigration detention population from 1990 to 28 February 2015:

Source: Department of Immigration and Border Protection (DIBP), ‘Immigration detention and community statistics summary’, DIBP website, 28 February 2015’, p. 5, accessed 20 March 2015.

With regard to the composition of the ‘detention network’, the Minister’s second reading speech notes some significant changes:

The onshore detention network holds an increasing number of detainees who present behavioural challenges including:

- an increasing number of people subject to adverse security assessments;

- people who have been convicted of violent crime, drug or other serious criminal offences; and

- others deemed to be of high security risk, such as members of outlaw motorcycle gangs. 25

This is supported by the immigration detention statistics over the last five years, which reveal a growing number of visa cancellations from only 52 in February 2010 to some 100 in February 2013 to 234 cancellations in February 2015.26

In Al-Kateb v Godwin [2004] HCA 37 McHugh J observed that ‘as long as the purpose of the detention is to make the alien available for deportation or to prevent the alien from entering Australia or the Australian community, the detention is non-punitive’.27 In Plaintiff M76-2013 v Minister for Immigration, Multicultural Affairs and Citizenship [2013] HCA 53 Keifel and Keane JJ similarly noted:

24. Ibid.

25. P Dutton, 'Second reading speech: Migration Amendment (Maintaining the Good Order of Immigration Detention Facilities) Bill 2015, op. cit., p. 2 26. Department of Immigration and Border Protection (DIBP), ‘Immigration detention and community statistics summary’, various years, DIBP website, accessed 5 March 2015. 27. Al-Kateb v Godwin (2004) 219 CLR 562, [2004] HCA 37 at 45, accessed 5 March 2015.

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… immigration detention is readily characterised, not as a mode of punishment for an offence, but as a means evidently capable of serving the purpose of ensuring that an alien who presents uninvited and unheralded at the border with no right to enter Australia does not do so while consideration is given by the Australian government to whether permission to enter should be given. It is also an obvious means to ensure that an alien is available for deportation if permission to enter is not forthcoming.

28

The United Nations High Commissioner for Refugees (UNHCR) Guidelines on the Applicable Criteria and Standards relating to the Detention of Asylum-Seekers and Alternatives to Detention draw attention to the 1988 UN Body of Principles for the Protection of all Persons under any form of Detention or Imprisonment, 1955 UN Standard Minimum Rules for the Treatment of Prisoners, and the 1990 UN Rules for the Protection of Juveniles Deprived of their Liberty. In particular, they emphasise the importance of ‘the use of separate detention facilities to accommodate asylum-seekers. The use of prisons should be avoided. If separate detention facilities are not used, asylum-seekers should be accommodated separately from convicted criminals or prisoners on remand. There should be no co-mingling of the two groups’.29

The Department’s Detention Services Manual states that a temporary transfer may occur to a correctional facility where a detainee’s presence poses a significant risk to the good order and security of an immigration detention facility. In such circumstances, the detainee being moved to a correctional facility for reasons of security remains in immigration detention though the correctional facility takes physical responsibility of the detainee.30 In such circumstances, the Department retains its duty of care to the detainee, though the correctional facility also holds a duty of care to the individual. It is not known how many detainees have been transferred to correctional facilities in recent times and where they have been transferred.

The changing composition and culture of immigration detention facilities is also attracting media attention. For example, in his piece entitled ‘Criminals housed in Yongah Hill detention centre; asylum seekers “scared"’, Nicolas Perpitch writes:

The highest risk section 501 detainees 31 are held in Falcon compound…The asylum seekers and other detainees who

have breached their visas or had them cancelled are held in the Eagle, Hope and Swan compounds. Women are held completely separately in a compound at the front of the centre. The men are locked in their compounds from midnight to about 6:30am, but the different groups can then largely mix across the grounds and other buildings the rest of the time.

One asylum seeker, who did not want his name used, said he felt scared. "It's the same as jail," he told the ABC. "It's dangerous, every day people are fighting. Someone here got stabbed. "How would you be if you mixed with 501s?"

One man who had his visa cancelled for non-violent criminal offences said the Serco guards were not correctional officers and were not trained to deal with people of a violent nature or who were in prison. He said the high risk detainees in Falcon compound often brought the "politics" of their prison experience with them. "[They say the] 'officers are dogs, are the enemies' so the officers are very agitated, very scared," he said. "So they are dealing with us in a completely different manner now."It's frightened all of us. Some people are very scared, some people don't even leave their rooms. "We have child molesters who have been in prison for 10 years and we have young men who are 18 years old."…

The primary reason the Immigration Minister can refuse or cancel a visa on character grounds is when a person has a substantial criminal record where they have been sentenced to a total term of imprisonment of 12 months or more. "My understanding is that the detention network people [Serco] are working with the WA police and the

28. Plaintiff M76-2013 v Minister for Immigration, Multicultural Affairs and Citizenship [2013] HCA 53 at 207, accessed 5 March 2015. 29. UN High Commissioner for Refugees (UNHCR), Guidelines on the applicable criteria and standards relating to the detention of asylum-seekers and alternatives to detention, UNHCR, 2012, accessed 10 March 2015. 30. DIBP, Procedures Advice manual (PAM3) Detention Services Manual: Duty of care to detainees, Legendcom database, accessed 16 March

2015.

31. These are people who have had visas refused or cancelled under section 501 of the Migration Act, for failing the character test.

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prisons section to see if the nature of their offence is so high that they should be held in a prison environment rather than a detention centre," Mr Pollard said. 32

See further:

• N Toscano and B Donelly, ‘Maribyrnong detention centre: Growing "culture of excessive force"’, The Age33

• P Farrell, ‘Australian-run asylum detention centres see sharp rise in serious incidents’, The Guardian (Australia)34 and

• A White, ‘Two Maribyrnong Immigration Detention Centre guards stood down over detainee assault claim’, The Herald Sun.35

The Government’s non-delegable duty of care The Government owes a non-delegable duty of care to immigration detainees. As noted by Finn J in a 2005 Federal Court of Australia decision, S v Secretary, Department of Immigration and Multicultural and Indigenous Affairs and Another:36

While the scheme of the Migration Act levels the processes of detaining and holding in detention to detaining or holding by “an officer”, the context and structure of the Act in my view makes plain that, whosoever the officer in a given case, the detaining and holding is both on behalf of the Commonwealth and by the Commonwealth. “Officers” provide the Commonwealth’s medium for the purposes of the Act. It is for this reason I consider that the Commonwealth has correctly conceded in this matter that it owes a non-delegable duty of care to the applicants because of its particular “relationship” with detainees…

37

His Honour likened the relationship of the Commonwealth to persons in immigration detention who are known to belong to a class suffering from mental illness to two other classes of relationship which attract non-delegable duties, those being hospital and patient and gaoler and prisoner. With regard to the standard required of the Commonwealth, he noted:

… I am nonetheless satisfied that the minimum properly to be expected of the Commonwealth in virtue of its relationship with detainees in an immigration detention centre such as Baxter is that it ensure that reasonable care is taken of the detainees who, by reason of their detention cannot care for themselves. This necessitates that the Commonwealth ensures that a level of medical care is made available which is reasonably designed to meet their health care needs including psychiatric care. Where, as here, the Commonwealth contracts out the provision of services to detainees it is obliged to see that “care is taken” and that the requisite level of medical care is provided and with reasonable care and skill. [References omitted].

38

The Department’s Detention Services Manual succinctly summarises the Government’s non-delegable duty of care to immigration detainees in the following terms:

The department owes a duty of care to all detainees in all types of immigration detention. This means the department and its detention service providers are legally obliged to exercise a reasonable care to prevent detainees from suffering reasonably foreseeable harm. The department risks being sued for negligence if it breaches its duty of care and a detainee suffers harm as a direct result…The department’s duty of care requires it to exercise reasonable care for the day-to-day needs, as well as the safety and welfare of all detainees. It extends to taking reasonable care to prevent harm that could stem from the foreseeable activities of a detainee or from third persons. It also extends to taking reasonable care to ensure, to the fullest extent possible, that a detainee does not

32. N Perpitch, ‘Criminals housed in Yongah Hill detention centre; asylum seekers "scared"’, ABC News (online edition), 11 February 2015, accessed 10 March 2015. 33. N Toscano and B Donelly, ‘Maribyrnong detention centre: Growing "culture of excessive force"’, The Age, 14 February 2015, accessed 20 March 2015. 34. P Farrell, ‘Australian-run asylum detention centres see sharp rise in serious incidents’, The Guardian (Australia), 21 January 2015, accessed

20 March 2015. 35. A White, ‘Two Maribyrnong Immigration Detention Centre guards stood down over detainee assault claim’, The Herald Sun, 1 July 2014, accessed 20 March 2015. 36. S v Secretary, Department of Immigration and Multicultural and Indigenous Affairs and Another [2005] FCA 549, accessed 5 March 2015. 37. Ibid., at 199. 38. Ibid., at 212.

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suffer ill-health from the circumstances of their detention and that the detainee receives adequate medical care while in detention. However, the department’s non-delegable duty to take reasonable care of detainees does not translate to a guarantee that a detainee will not suffer harm as a consequence of the very fact of their lawful detention, or in other words, harm attributable to the elements inherent in detention itself, such as loss of personal liberty, privacy etc…

The department concedes that its duty of care towards detainees is non-delegable, which means that it cannot be delegated or transferred to anyone else. A non-delegable duty of care requires the department to ensure that reasonable care is taken.

If the detention service provider breaches its duty of care towards detainees, the department may also be found to have breached its (non-delegable) duty of care by failing, for example, to adequately monitor the performance of its detention service providers’ own duty of care obligations towards detainees. 39

Reasonable force and defences at common law The Minister’s second reading speech notes that ‘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’.40 The Minister does not elaborate upon this statement or provide any further information to explain how the authority is limited. In contrast, the Statement of Compatibility with Human Rights states the scope and extent of the powers under the common law is ‘unclear’.41

The Explanatory Memorandum clarifies that under the common law, when assessing whether an employee of an immigration detention facility lawfully exercised force, ‘the courts would consider the common law test of what was objectively reasonable in the circumstances’. In contrast, when assessing whether a police officer lawfully exercised force ‘the courts would focus on the officer’s subjective personal assessment of the situation and what the officer believed, on reasonable grounds, was necessary. This is because the use of force is specifically provided for in relevant legislation to which the police officers are subject’.42

The Statement of Compatibility with Human Rights also notes that the amendments in the Bill will ‘lessen the reliance on the common law defences’.43 Again, no additional information is provided to explain or elaborate upon this statement. In brief, in tort law a defendant could seek to rely on defences such as self-defence or necessity, to defeat a claim.44 In Zecevic v DPP [1987] HCA 26, self-defence was described this way by Wilson, Dawson and Toohey JJ:

The question to be asked is in the end quite simple. It is whether the accused believed upon reasonable grounds that it was necessary in self-defence to do what he did. 45

In Watkins v The State of Victoria & Ors [2010] VSCA 138, Ashley JA and Beach AJA observed as follows with respect to the two elements of the defence:46

There are two elements to this test. In the context of a civil proceeding, the defendant must have believed at the time when he committed the relevant act that what he was doing was necessary; and that belief must have been based on reasonable grounds. The second element does not involve a test about what a hypothetical reasonable person might have believed in the circumstances, but rather whether the defendant had reasonable grounds for his belief, in the circumstances as he perceived them to be.

39. DIBP, Detention Services Manual - Chapter 1 - Legislative and principles overview - Duty of care to persons in immigration detention, LEGENDcom database, accessed 5 March 2015. 40. Second reading speech, op. cit., p. 2. 41. Statement of Compatibility, op. cit., p. 23. 42. Explanatory Memorandum, Migration Amendment (Maintaining the Good Order of Immigration Detention Facilities) Bill 2015, op. cit., p. 6. 43. Statement of Compatibility, op. cit., p. 23. 44. White v Johnson [2015] NSWCA 18, paragraph [107], accessed 12 March 2015. 45. Zecevic v DPP (1987) 162 CLR 645, [1987] HCA 26, accessed 20 March 2015. 46. Watkins v The State of Victoria and Ors [2010] VSCA 138, accessed 20 March 2015.

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In determining whether the defendant believed that the force used was necessary, consideration should be given to the fact that a person who has reacted instantly to imminent danger cannot be expected to weigh precisely the exact measure of self defensive action which is required.

The proportionality of a defendant’s response to the harm threatened is just one factor to take into account in determining whether the defendant believed that his actions were necessary.

In a civil trial - by contrast with the situation in a criminal proceeding - it is for a defendant who pleads the defence to establish it. Insofar as proportionality of response is relevant to a conclusion whether the defendant believed on reasonable grounds for him or her to do what he did, the burden of establishing proportionality rests on the defendant.

The test stated in Zecevic, appropriately adopted, has been held to apply to cases in which a defendant acts in defence of another: R v Portelli. The question becomes whether the defendant believed, on reasonable grounds, that it was necessary to do what he or she did in defence of another person. [Footnotes omitted]. 47

At common law, the defence of necessity is a complete defence to any trespassory conduct such as battery or assault. As a general rule, for the defence of necessity to succeed, the person who has prima facie committed a trespass must prove: (1) reasonable necessity for the trespassory action (to preserve life and health); (2) duress of circumstances (in other words, an urgent situation of imminent peril); (3) that he or she did not create the situation of imminent peril.48

Proposed statutory use of force framework Proposed paragraph 197BA(1)(a) provides that an authorised officer may use such reasonable force against any person49 or thing, as the authorised officer reasonably believes is necessary, to protect the life, health or safety of any person in an immigration detention facility. More contentious is proposed paragraph 197BA(1)(b), which broadly states that such force may also be used to maintain the good order, peace or security of an immigration detention facility. The Bill does not define the term ‘reasonable force’.

Proposed subsection 197BA(2) provides that an authorised officer may use such reasonable force as the authorised officer reasonably believes is necessary under subsection (1) to:

(a) protect a person (including the authorised officer) in an immigration detention facility from harm or a threat of harm

(b) protect a detainee in an immigration detention facility from self-harm or a threat of self-harm

(c) prevent the escape of a detainee from an immigration detention facility

(d) prevent a person from damaging, destroying or interfering with property in an immigration detention facility

(e) move a detainee within an immigration detention facility, or

(f) prevent action in an immigration detention facility by any person that:

(i) endangers the life, health or safety of any person (including the authorised officer) in the facility; or

(ii) disturbs the good order, peace or security of the facility.

The Explanatory Memorandum notes that the above is not intended to be an exhaustive list and that other circumstances might arise that necessitate the use of reasonable force, such as to prevent a group of detainees from fighting.50

47. Watkins v The State of Victoria and Ors [2010] VSCA 138, at 71-75, accessed 20 March 2015. 48. D Mendelson, The New Law of Torts, Oxford University press, Oxford, third edition, 2014, pp. 287—288. 49. ‘The reference to “any person” in this provision includes a detainee, an employee of the Department of Immigration and Border Protection, a visitor to an immigration detention facility, and any other person who is in an immigration detention facility’: Explanatory Memorandum,

Migration Amendment (Maintaining the Good Order of Immigration Detention Facilities) Bill 2015, op cit., p. 6. 50. Explanatory Memorandum, Migration Amendment (Maintaining the Good Order of Immigration Detention Facilities) Bill 2015, op. cit., p. 9.

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Objective to subjective As previously mentioned, under proposed section 197BA the legality of the use of force would turn on an authorised officer’s subjective personal assessment of the situation and what the officer believed, on reasonable grounds, was necessary force to either protect the life, health or safety of any person in an immigration detention facility or maintain the good order, peace or security of an immigration detention facility.

The Senate Standing Committee for the Scrutiny of Bills notes that this constitutes a very significant increase in powers to employees of Immigration Detention Services Providers who are authorised officers and that a justification to confer police-like powers on persons who are not sworn police officers should include a more detailed explanation and supporting arguments:

Indeed, the scope and extent of these powers is acknowledged in the statement of compatibility, where they are described accurately as ‘police-like powers’ (at p. 25). The statement of compatibility states that it is undesirable to rely on common law powers as the scope and extent of those powers is unclear (p. 23). On the other hand, it may be that this approach may encourage a cautious approach to the use of force and that this is appropriate… the committee notes that a justification to confer police-like powers on persons who are not sworn police officers should include a more detailed explanation and supporting arguments to establish the necessity and appropriateness of such powers.

51 [Emphasis added].

The JCHR notes that ‘a number of analogous state and territory laws governing the use of force in prisons do not enable force to be used based on the officer's belief, but apply objective tests such as that force may be used when it is 'reasonably necessary in the circumstances' or that the officer may 'where necessary, use reasonable force'’.52 In addition, the JCHR also noted that the Government has not specified any particular instances or circumstances where the current requirement that officers may only use force when objectively necessary has been uncertain in its application or what the consequences of such cases have been:

However, it is unclear to the committee that the objective of removing uncertainty for employees of an IDSP concerning their authority to use reasonable force, in and of itself, addresses a pressing or substantial concern. In particular, the statement of compatibility does not specify any particular instances or circumstances where the current requirement that IDSP officers may only use force when objectively necessary has been uncertain in its application; and does not explain what the consequences of any such cases have been.

53 [Emphasis added].

Limitations on the exercise of power The Bill contains a number of limitations on the ability of an authorised officer to use reasonable force against a person or thing. Before discussing these, it is relevant to note that the JCHR has observed that ‘while the statement of compatibility notes the 'intention' that the use of force is to be used consistently with the seriousness of the incident, proportionate to the level of resistance and only as a measure of last resort, these safeguards are not placed on a statutory footing’.54

The JCHR also observed that ‘the Bill appears to lack a number of safeguards that apply to analogous state and territory legislation governing the use of force in prisons’. For example, there is no requirement that:

• the use of force only be used as a last resort

• force should be used only if the purpose sought to be achieved cannot be achieved in a manner not requiring the use of force

• the infliction of injury is to be avoided if possible

• use of force to protect a person from a 'threat of harm' applies only to an 'imminent' threat

• the use of force to 'prevent a person from damaging, destroying or interfering with property' is permissible only if the person is in the process of damaging the property and, if not, there must be a reasonable apprehension of an immediate attack and

51. Senate Standing Committee for the Scrutiny of Bills, Alert Digest No. 3 of 2015, op. cit., p. 21. 52. Parliamentary Joint Committee on Human Rights, op. cit., p. 20. 53. Ibid., p. 18. 54. Ibid., p. 23.

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• the use of force be limited to situations where the officer cannot otherwise protect him or herself or others from harm.55

Further, the JCHR noted that:

… the Bill would allow force to be used to prevent any action that disturbs the good order, peace or security of the facility, which provides an ill-defined and extremely broad authorisation for the use of force by IDSP officers. In contrast, analogous state and territory legislation governing the use of force in prisons generally limits the use of force to preventing or quelling a riot or disturbance.

56 [Footnotes omitted and emphasis added].

The Department’s Detention Services Manual currently states ‘All use of force and/or restraint should be proportionate to the situation, objectively justifiable and only used as a measure of last resort’.57 It further explains:

What this means is that the officer reasonably believes that there is no other option other than the use of reasonable force and/or restraint. The level of force must be proportionate to the threat being faced and always at the minimum level to achieve legislative outcomes. 58

Nourishment or fluids Proposed subsection 197BA(4) provides that an authorised officer must not exercise the power under subsection 197BA(1) to give nourishment or fluids to a detainee in an immigration detention facility. The Explanatory Memorandum clarifies that ‘the provision recognises that it is the role of qualified medical practitioners who can assess an individual’s medical needs, rather than that of the immigration detention services provider, to provide medical intervention in an immigration detention facility’.59

It is relevant in this context to highlight the existence of regulation 5.35 of the Migration Regulations 1994 which relevantly authorises medical treatment (including the administration of nourishment and fluids) to be given to a detainee if, on the advice of the Commonwealth Medical Officer or registered medical practitioner, the Secretary of the Department forms the opinion that:

• the detainee needs medical treatment

• if medical treatment is not given to that detainee, there will be a serious risk to his or her life or health and

• the detainee fails to give, refuses to give, or is not reasonably capable of giving, consent to the medical treatment.60

In addition, the regulation authorises the use of reasonable force (including the reasonable use of restraint and sedatives) for the purpose of giving medical treatment to a detainee.61

Indignity and grievous bodily harm Proposed subsection 197BA(5) provides that in exercising a power under subsection 197BA(1) an authorised officer must not:

• subject a person to greater indignity that the authorised officer reasonable believes is necessary in the circumstances or

• do anything likely to cause a person grievous bodily harm unless the authorised officer reasonably believes that doing the thing is necessary to protect the life of, or to prevent serious injury to, another person (including the authorised officer).

55. Ibid., p. 19. 56. Parliamentary Joint Committee on Human Rights, op. cit., p. 19. 57. DIBP, Detention Services Manual, Use of reasonable force in immigration detention, Legendcom database, accessed 19 March 2015. 58. Ibid.

59. Explanatory Memorandum, Migration Amendment (Maintaining the Good Order of Immigration Detention Facilities) Bill 2015, op cit., pp. 9-10. 60. Migration Regulations 1994, accessed 20 March 2015. 61. For further information see: MA Kenny, ‘Force-feeding asylum seekers’, Alternative Law Journal, 27(3), June 2002, accessed 16 March 2015;

Subramaniam v Mental Health Review Tribunal [2012] NSWSC 918.

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The JCHR notes that the use of the term ‘no greater indignity’ implies that an authorised officer may thus subject a person to a degree of indignity.62

Training and qualifications Proposed subsection 197BA(6) provides that an officer must not be authorised unless they satisfy the training and qualification requirements determined by the Minister by way of a (non-disallowable) determination under proposed subsection 197BA(7).

According to the Explanatory Memorandum, ‘at this time, the qualification and training requirements that are likely to be determined by the Minister in writing for the purposes of new subsection 197BA(7) of the Migration Act include the Certificate Level II in Security Operations’.63 However, the JCHR observes ‘it is not clear to the committee that this level of training, which is the same as is required by crowd controllers and security guards, is sufficient to ensure that IDSP officers exercise the proposed use of force powers compatibly with the right to life’.64

Statutory protection from civil and criminal liability Currently, there is no bar in the Migration Act preventing immigration detainees from commencing proceedings (both civil and criminal) in relation to the use of force in immigration detention facilities. As noted in Behrooz v Secretary, Department of Immigration and Multicultural and Indigenous Affairs [2004] HCA 36 ‘an alien does not stand outside the protection of the civil and criminal law. If an officer in a detention centre assaults a detainee, the officer will be liable to prosecution, or damages. If those who manage a detention centre fail to comply with their duty of care, they may be liable in tort’.65

Dr Azadeh Dastyari (Monash University) has observed, ‘the Commonwealth Government can be and has successfully been sued for breaching its duty of care in detention centres in Australia’.66 However, the Commonwealth reportedly typically chooses to settle claims from immigration detainees rather than see them go to court.67 Department of Finance figures from 2014 reportedly showed that more than $22 million has been paid out in claims to immigration detainees since 1999.68 However, it is not known whether this is inclusive of costs and how much was paid out in respect of alleged injury (as opposed to wrongful detention).

Proposed section 197BF provides that no legal proceedings (either civil or criminal) may be instituted or continued in any court against the Commonwealth (including an officer of the Commonwealth and any other person acting on behalf of the Commonwealth) in relation to an exercise of power under proposed section 197BA if the power was exercised in good faith. However, proposed subsection 197BF(3) expressly preserves the jurisdiction of the High Court under section 75 of the Commonwealth Constitution.

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’.69 No further information is provided in the Bill’s accompanying materials to substantiate or elaborate upon this claim.

The purpose of this amendment is to provide immunity from legal action against the Commonwealth. It appears the immunity will extend to the Commonwealth itself as well as Commonwealth officers and others acting on behalf of the Commonwealth.70 This point was also picked up by the JCHR which relevantly noted, ‘it is unclear

62. Parliamentary Joint Committee on Human Rights, op. cit., p. 23. 63. Explanatory Memorandum, Migration Amendment (Maintaining the Good Order of Immigration Detention Facilities) Bill 2015, op. cit., p. 11. 64. Parliamentary Joint Committee on Human Rights, op. cit., p. 20. 65. Behrooz v Secretary, Department of Immigration and Multicultural and Indigenous Affairs 219 CLR 486 [2004] HCA 36, paragraph [21],

accessed 20 March 2015. 66. A Dastyari. ‘Out of sight, out of right? Who can be held accountable for immigration detainees harmed on Nauru?’ in Ed. L Briskman and A Babacan, eds, Asylum Seekers: International Perspectives on Interdiction and Deterrence, Cambridge Scholars Publishing, 2008, pp. 82—96. 67. C Vedelago, ‘Government in fight over refugee injury claims’, The Sydney Morning Herald (online edition), 20 July 2014, accessed 16 March

2015.

68. Ibid.

69. Explanatory Memorandum, Migration Amendment (Maintaining the Good Order of Immigration Detention Facilities) Bill 2015, op. cit., p. 16. 70. The use of the word ‘includes’ is normally used to enlarge the ordinary meaning of the word: D Pearce and S Geddes, Statutory interpretation in Australia, LexisNexis Butterworths, Australia, pp. 309-313.

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to the committee why it is necessary to bar proceedings against the Commonwealth as a whole if the intention of the provision is to provide personal immunity to the authorised officer’.71

The Explanatory Memorandum notes that ‘employees of the immigration detention services provider would not be afforded the same protection against criminal or civil action that police officers have’.72 Though police officers have protection from legal action, it is relevant to note that the Commonwealth remains liable in respect of a tort committed by an Australian Federal Police (AFP) member or protective service officer under section 64B of the Australian Federal Police Act 1979. Similarly, the Crown remains liable in NSW, Queensland and (to a limited extent) Victoria, in claims for damages resulting out of the actions of their police officers.73

Good faith The immunity from suit will only apply if the powers are not exercised in good faith. This will be a question for the courts to determine.

Justice Finn in Secretary, Department of Education, Employment, Training and Youth Affairs v Prince [1997] FCA 1565 observed the following with respect to ‘good faith’:

The significance of the statutory context in which the formula is used is in the illumination it gives as to what is that required state of affairs. It has correctly been observed that the term “good faith” (or its now less fashionable Latin equivalent “bona fide”) is a protean one having longstanding usage in a variety of statutory and, for that matter, common law contexts.

74

In Electro Optic Systems Pty Ltd v State of New South Wales; West and Anor v State of New South Wales [2014] ACTCA 45 it was said that ‘the burden of the formula can vary significantly given the purpose it is intended to serve in a given setting. In one context it can focus inquiry upon a person's reason for action (for example, as with the good faith duty of company directors); in another, to a person's state of knowledge when a particular event occurs’.75

In Bankstown City Council v Alamdo Holdings Pty Limited [2005] HCA 46, the High Court pointed out that what is required for something to be done or omitted in good faith may vary from case to case. Gleeson CJ, Gummow, Hayne and Callinan JJ at 51 held that “good faith” in the case before them required ‘something more than negligence ... because, unless negligence were present, there would be no liability for protection against which [the section] was required ...’.76

The High Court had said the same thing in Board of Fire Commissioners of New South Wales v Ardouin [1961] HCA 71 about the protection afforded by section 46 of the Fire Brigades Act, 1909-1956 (NSW), which then provided that “[t]he board, the chief officer, or an officer of the board, exercising any powers conferred by this Act or the by-laws, shall not be liable for any damage caused in the bona fide exercise of such powers...”.77 As Windeyer J put it:

… where the section applies, it protects the person it refers to from liability for damage resulting from acts which are done in good faith and directly in the exercise of a power that the statute conferred and whether they are done skilfully or negligently. In other words, an officer expressly empowered to do something can decide, not only that it is to be done, but how it is to be done - and his actions, directions and decision cannot, if bona fide, be later canvassed before a jury on the ground that they were imprudent or that what was done was done in a negligent manner. The powers to which s. 46 relates are powers that may often have to be exercised by the officer in control

71. Parliamentary Joint Committee on Human Rights, op. cit., p. 30. 72. Explanatory Memorandum, Migration Amendment (Maintaining the Good Order of Immigration Detention Facilities) Bill 2015, op. cit., p. 16. 73. See Law Reform (Vicarious Liability) Act 1983 (NSW), section 9B; Police Service Administration Act 1990 (Qld), section 10.5; Victoria Police Act 2013 (Vic), section 74, accessed 20 March 2015.

74. Secretary, Department of Education, Employment, Training and Youth Affairs v Barry Prince [1997] FCA 1565 at 129, accessed 20 March 2015. 75. Electro Optic Systems Pty Ltd v State of New South Wales; West and Anor v State of New South Wales [2014] ACTCA 45 at 622, accessed 20 March 2015. 76. Bankstown City Council v Alamdo Holdings Pty Limited (2005) 223 CLR 660, [2005] HCA 46 at 674-5, accessed 20 March 2015. 77. Board of Fire Commissioners of New South Wales v Ardouin (1961) 109 CLR 105, [1961] HCA 71, accessed 20 March 2015.

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on the spot in an emergency, according to his judgment, and without his being restrained by considering what other persons might perhaps think about the matter afterwards. 78

The Senate Scrutiny of Bills Committee notes that bad faith is a very difficult allegation to prove and it is doubtful that showing that use of force was disproportionate (even grossly disproportionate) would amount to bad faith:

Although it can be accepted that criminal and civil liability may attach to the unlawful exercise of force if it is exercised in bad faith, given the scope and extent of the powers conferred, the conferral of powers of officers who are not government employees, and the absence of any statutory remedies (as part of the complaints mechanism) for the wrongful use of force, it may be questioned whether immunity should be granted against prosecution and civil action merely on the basis of a requirement of ‘good faith’. In the context of judicial review, bad faith is said to imply a lack of an honest or genuine attempt to undertake the task and that it will involve personal attack on the honesty of the decision-maker. Bad faith, so considered, is a very difficult allegation to prove. It is doubtful that showing that use of force was disproportionate (even grossly disproportionate) would amount to bad faith.

The committee has considered the argument that police-like powers should be afforded the same protection against criminal or civil action that police officers have, however further justification is required as authorised officers are not sworn police officers who are subject to additional lines of legal and political accountability.

79 [Emphasis added]

The Minister noted that ‘the provisions in this Bill send a clear message to Authorised Officers that force is not to be exercised capriciously or inappropriately’.80 However, the absence of a statutory immunity from civil and criminal liability would arguably be a stronger incentive for authorised officers to not exercise the powers capriciously or inappropriately.

Original jurisdiction of the High Court Proposed subsection 197BF(3) notes that nothing in this section is intended to affect the jurisdiction of the High Court under section 75 of the Constitution.

However, the Senate Scrutiny of Bills Committee was unable to accept the assumption that the actions of an ‘authorised officer’ would necessarily be reviewable under section 75(v) of the Constitution and even if the High Court did have jurisdiction over such actions, the availability of effective remedies would be an issue for victims of excessive force. The Committee noted:

First, the High Court’s jurisdiction is conditioned on an application being made in relation to a matter where prohibition, mandamus or injunction is sought against an officer of the Commonwealth. The orthodox view is that an officer of the Commonwealth is a person appointed by the Commonwealth (to an identifiable office) who is paid by the Commonwealth for the performance of their functions and who is responsible to and removable by the Commonwealth from that office: R v Murray and Cormie; ex parte the Commonwealth (1916) 22 CLR 437 (for a recent application see Broadbent v Medical Board of Queensland (2011) 195 FCR 438). Although the High Court has raised the question of whether independent contractors may be covered by s 75(v) ‘in circumstances where some aspects of the exercise of statutory or executive authority of the Commonwealth has been ‘contracted out’’ (Plaintiff M61/2010E v Commonwealth (2010) 243 CLR 319, 345), this question has not been definitively decided. In these circumstances, the committee is unable to accept the assumption that the actions of an ‘authorised officer’ employed by an Immigration Detention Services Provider would necessarily be reviewable under section 75(v) of the Constitution.

Secondly, even if the High Court were to hold that its section 75(v) judicial review jurisdiction did cover the actions of these ‘authorised officers’, it is not clear in practical terms what the exercise of that jurisdiction would achieve for a victim of the use of force that exceeded an authorised officer’s powers to exercise reasonable force. As noted

78. Board of Fire Commissioners of New South Wales v Ardouin (1961) 109 CLR 105 [1961] HCA 71 at 128, accessed 20 March 2015. 79. Senate Scrutiny of Bills Committee, op. cit., pp. 27-28. 80. P Dutton, 'Second reading speech: Migration Amendment (Maintaining the Good Order of Immigration Detention Facilities) Bill 2015', op. cit., p. 3.

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above, that jurisdiction provides for the issue of three named remedies: prohibition, mandamus and injunction. 81

[Emphasis added].

Complaints mechanisms Proposed section 197BB provides that a person may complain to the Secretary of the Department about an authorised officer’s exercise of power under section 197BA. Such a complaint must be in writing and the Secretary must provide appropriate assistance to a person who wishes to make a complaint.

If the Secretary decides to conduct an investigation into a complaint, he may do so ‘in any way the Secretary thinks appropriate’. If, after completing the investigation, the Secretary is satisfied that it is appropriate to refer the complaint to the Ombudsman, the Secretary must refer the complaint to the Ombudsman (along with any documentation). However, it should be noted that the Ombudsman can only make non-enforceable recommendations to the Government under the Ombudsman Act 1976.82

Under proposed section 197BD, the Secretary can decide not to investigate a complaint (or not to investigate further) if satisfied that:

• the complainant has previously made the same, or a substantially similar, complaint to the Secretary and the Secretary:

- has dealt, or is dealing, adequately, with the complaint - has not yet had an adequate opportunity to deal with the complaint • the complaint is frivolous, vexatious, misconceived, lacking in substance or is not made in good faith

• the complainant does not have sufficient interest in the subject matter of the complaint or

• the investigation, or any further investigation, is not justified in all the circumstances.

Under proposed section 197BE, the Secretary may also decide not to investigate a complaint if satisfied that it could more conveniently or effectively be dealt with by any of the following persons:

• the Ombudsman

• the Commissioner of the Australian Federal Police or

• the Commissioner or head of a state or territory police force.

In which case, the Secretary is required to transfer the complaint (along with any documentation) to such a person.

Not insignificantly, the Senate Scrutiny of Bills Committee observes that ‘the Bill leaves the consequences arising from the investigation of a complaint unspecified (in terms of practical remedies for complainants and disciplinary consequences for authorised officers and Immigration Detention Services Providers)’.83

Currently, the Department’s Detention Services Manual provides for a broader complaint process. It relevantly states:

Where a person in immigration detention believes they have been subjected to force that is excessive, unreasonable or not appropriate, they must be advised of, and allowed to access, the full range of complaints handling mechanisms available to all immigration clients, including: the DSP [detention service providers]; the Department; the Australian Human Rights Commission; the Commonwealth Ombudsman; the police and legal representation if requested.

84

The Explanatory Memorandum notes that ‘it is expected that detainees will continue to be able to access these types of external agencies and organisations to raise problems or make complaints. However, obviously the manner and nature of support provided by these agencies and organisations may change over time’.85

81. Senate Scrutiny of Bills Committee, op. cit., pp. 28-29. 82. Ombudsman Act 1976, accessed 20 March 2015. 83. Ibid., p. 27. 84. DIBP, Detention Services Manual, Use of reasonable force in immigration detention, Legendcom database, accessed 19 March 2015. 85. Explanatory Memorandum, Migration Amendment (Maintaining the Good Order of Immigration Detention Facilities) Bill 2015, op. cit., p. 12.

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Independent scrutiny In September 2011 the Commonwealth Ombudsman made a submission to the Joint Select Committee on Australia’s Immigration Detention Network wherein the Ombudsman expressed concern about the use of force in detention centres:

The Ombudsman is also concerned about the use of force in detention centres and suggests that better monitoring and governance is required to ensure consistency, competency and integrity of the reporting of incidents as well as ongoing training to build the capacity for de-escalation of situations which lead to unrest in detention centres…

The Ombudsman has investigated complaints and matters arising from detention reviews and visits to detention centres which have raised serious concerns about the consistency, competency and integrity of incident reporting within the detention network.

Incident reports relating to allegation of assaults examined by the Ombudsman have contained inaccuracies and omission of material crucial to any investigation of the incident. Competent and consistent descriptions of circumstances and actions taken including use of force have been lacking. Witness statements from detainees are not regularly taken.

Our investigations, some of which are not finalised, have identified preliminary concerns with the processes for investigation of unreasonable use of force by Serco officers towards detainees. The issues include a lack of concern, or action to demonstrate concern, for the victim of unreasonable force and the effect that this has on the person’s welfare as well as others who have witnessed the incident. The length of time to finalise investigations, the lack of interim contact with the victim, the extent to which monitoring and interest in the matters of the investigation are taken by the Department are also factors…

The Ombudsman suggests that the Department review the quality and management of incident reporting across the detention network and Serco’s capacity to monitor adherence to reporting guidelines. Our office is aware through its interviews with detainees that incidents of unreasonable use of force or perceived unreasonable use of force, and subsequent failure to adequately resolve those matters are issues which increase tension and unrest within the detention network. They may also be indications of a failure in the duty of care responsibilities of Serco and the Department.

86

Though the submission states ‘the Ombudsman has recently conducted an own motion investigation into the use of force on Christmas Island and will release this report publicly when it is finalised’, the Ombudsman’s office confirmed with the author that no report was subsequently published.

The JCHR expressed concern that there may be inadequate monitoring of the use of force to ensure detainees are treated appropriately. The Committee emphasised that there is no legislated requirement for independent oversight mechanisms like those which exist in Western Australia and New South Wales correctional environments:

With regard to the monitoring of the use of force in immigration detention facilities, the statement of compatibility states that the contract for the provision of detention services sets out governance mechanisms, including video-recording the event when there is a planned use of force and the provision of a written report.

However, there is no legislated requirement for an independent review of the use of force. Rather, the bill provides that a complaint may be made to the Secretary of the department. This arrangement may be contrasted with arrangements for independent oversight such as in New South Wales and Western Australia where there is an independent inspectorate providing external scrutiny of the standards and operational practices of custodial services. [Footnotes omitted and emphasis added].

87

86. Commonwealth Ombudsman, Submission to the Joint Select Committee on Australia’s Immigration Detention Network, September 2011, pp. 17-18, 22, accessed 19 March 2015. See also: Commonwealth Ombudsman, Government breaches its own care principles? Ombudsman investigates, media release, 14 April 2011, accessed 19 March 2015.

87. Parliamentary Joint Committee on Human Rights, op. cit., p. 23.

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As the majority of detainees currently in immigration detention facilities are asylum seekers, it is relevant to note the UNHCR Guidelines on the Applicable Criteria and Standards relating to the Detention of Asylum-Seekers and Alternatives to Detention, which relevantly state:

Non-discriminatory complaints mechanism (or grievance procedure) needs to be in place, where complaints may be submitted either directly or confidentially to the detaining authority, as well as to an independent or oversight authority. Procedures for lodging complaints, including time limits and appeal procedures, should be displayed and made available to detainees in different languages.

88 [Emphasis added].

In addition:

With regard to private contractors, subjecting them to a statutory duty to take account of the welfare of detainees has been identified as good practice. However, it is also clear that responsible national authorities cannot contract out of their obligations under international refugee or human rights law and remain accountable as a matter of international law. Accordingly, States need to ensure that they can effectively oversee the activities of private contractors, including through the provision of adequate independent monitoring and accountability mechanisms, including termination of contracts or other work agreements where duty of care is not fulfilled. [Footnotes omitted and emphasis added].

89

See further:

• NSW Ombudsman, Managing use of force in prisons: the need for better policy and practice90 and

• L English, ‘Can legislation alone end brutality in Australian prisons’, The Drum.91

88. UN High Commissioner for Refugees (UNHCR), Guidelines on the applicable criteria and standards relating to the detention of asylum-seekers and alternatives to detention, op. cit. 89. Ibid.

90. NSW Ombudsman, Managing use of force in prisons: the need for better policy and practice, July 2012, accessed 20 March 2015. 91. L English, ‘Can legislation alone end brutality in Australian prisons’, The Drum, 29 November 2012, accessed 20 March 2015.

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