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Legal and Constitutional Affairs Legislation Committee

EDGERTON, Mr Graeme, Senior Lawyer, Australian Human Rights Commission

TRIGGS, Professor Gillian, President, Australian Human Rights Commission

Committee met at 11:20.

CHAIR: I call to order this meeting of the Legal and Constitutional Affairs Legislation Committee and its inquiry into the Migration Amendment (Maintaining the Good Order of Immigration Detention Facilities) Bill 2015. This is a public proceeding being broadcast live via the web. Before welcoming our first witnesses, I will just say that this is being broadcast by A-PAC, providing the witnesses have no objection to that. I think the witnesses are familiar with Senate committee hearings. They are proceedings of parliament. Parliamentary privilege applies. If there is any wish to give evidence in camera that should be raised with the committee. We have received a submission from the Australian Human Rights Commission, which we have numbered as submission No. 25. I welcome the President of the commission, Professor Triggs, and Mr Edgerton, who is representing the commission as well. Thank you for your time in being with us today and for your assistance in your submission and orally on the bill. I invite you to make an opening statement and then the committee will have questions.

Prof. Triggs : I am very pleased indeed to have the opportunity to appear before this committee and to give evidence today and, as you have recognised, I appear with my colleague Mr Edgerton. We have made what I hope is a reasonably comprehensive submission to you on the key aspects of the bill and the matters that we would like to raise with you, so I do not want to take up a lot of your time in an opening statement. In essence, the bill describes the circumstances in which private contractors are authorised to use force against people in immigration detention. The range of incidents that can arise in immigration detention means that the use of force may occasionally be necessary, and we certainly accept that. But, in recognising the occasional need to use force, I would like to make three points. One concerns the scope of the power to use force, the second concerns the limits on the use of that force and the third concerns the accountability of those who use force beyond their statutory power.

As a preliminary point, it might be observed that contracted detention service providers—for practical purposes, the Serco guards—are not police officers. They should not be given wider powers or greater discretion that are currently reserved for police officers, and there should be clearly defined limits to the power of contractors to use force. The commission has, if I may say so, particular experience in the use of force in immigration detention centres because we receive complaints from detainees through our investigation and complaints service. Our submission sets out a number of case studies where the commissioners found that the force employed by detention centre guards breaches Australia's international human rights obligations, and we hope that those case studies in our submission to you will provide some illustrations of where the use of force might be seen as excessive.

Serco itself has recognised what it calls a need for 'strict limits' on its power to use force, and Serco argues that these limits should be set out in the law so that it has clarity about its obligations. The commission fully agrees with that view. Informing our approach to the scope and limits on the use of force are the Attorney-General's guidelines in relation to Commonwealth enforcement powers, which require that powers should broadly mirror those in the Commonwealth Crimes Act. Powers should be in legislation and not in regulations or policy statements and, finally, there should be a clear provision of accountability for those officers who go beyond their statutory powers. Taking the first of those points, the scope of the use of force—in the commission's view the outer limits on the use of force should be bounded by what is necessary and reasonable in the particular circumstances. This should be an objective assessment, and not one based on the subjective or hybrid tests in relation to a particular officer—and I refer in particular to section 197BA of the bill.

Secondly, limits on the use of force are set out in the Department of Immigration's detention centre manual itself, and they are the ones that are really well known—force should be a measure of last resort; it should be used only for the shortest amount of time necessary; it should never be cruel, inhuman or degrading; it should not be a punishment, for that is of course a judicial and not an executive power and it must not be excessive. Excessive force is force that extends beyond what is reasonably necessary in the circumstances and is described in more detail in that departmental manual. It includes any use of force when no force is required, the use of more force than is needed and the continuing use of force after the need for it has ended, and of course the knowingly wrongful use of force. These limits are well known; as I say, they are in the manual. They should be in the Act. If the power to use force is to be set out in the Migration Act, then it seems to us particularly appropriate that the limits on that power should also be in the Act itself, rather than confined to a policy document.

The commission has also made recommendations about appropriate limits on the use of force. Ordinarily, force should not be required, so the Act must be clear about the alternatives to the use of force that should first be pursued. If an officer wants someone to move, they should ask that person to move in a language they understand. This may require the use of an interpreter. The person should be given a reasonable opportunity to comply with a request before force is used. Children are, of course, especially vulnerable. The commission's report on the impact of prolonged detention on children documents the use of force and, indeed, provides some rather graphic pictures of where that force has been used. It is important that all alternatives to the use of force, including negotiation and de-escalation techniques, have been attempted before force is considered. In the vast majority of situations any such use of force will be planned. As part of that planning process, the use of force should be raised with the child's parent or guardian, who could then be given a chance to speak with the child to resolve the issue. The parent or guardian should also then be able to discuss with the officer whether the use of force is appropriate. Any planned use of force should be approved by the director of the detention facility.

The final issue that I would like to raise in opening is that private detention operators must be accountable for the use of force. This has two elements: one is that there needs to be an effective process for people in detention to complain about the use of force, and for an independent assessment to be made about whether that force was excessive. The bill sets up an internal complaints process run by the department. The commission recommends that a copy of each complaint received by the department be provided to the Commonwealth Ombudsman, and that the Ombudsman be given the power and the resources to review the operation of the internal complaints process. This would mirror the process that applies to complaints about the use of force by the Australian Federal Police currently.

The second element is that Australia is of course bound by the International Covenant on Civil and Political Rights, which requires a remedy for those whose rights have been violated. If the use of force is excessive, the person responsible should be accountable before the courts. The bill's proposed section 197BF gives immunity to contract guards, even if the force used is excessive, so long as that force is used in good faith. I think we all understand that it is almost impossible to demonstrate bad faith.

I strongly urge that this proposal be revisited to ensure that immunity from prosecution be available only when the force used is within the statutory power and is not excessive based on an objective, not a hybrid or subjective, standard. Moreover, there should be no separate immunity for the Commonwealth, which should remain liable on the usual principles of tort law where excessive force is employed.

Thank you very much for the opportunity to make that statement. My colleague and I are very happy to answer any questions that you may have.

CHAIR: Thank you very much, Professor. Mr Edgerton, do you have anything to add?

Mr Edgerton : No.

CHAIR: I will go first to Senator Lines.

Senator LINES: Thank you for your opening statement, Professor Triggs. I want to get you to clarify something, if you can. The bill relates to immigration detention facilities, and the explanatory memorandum says:

The Bill amends the Migration Act to define an immigration detention facility

Which facilities are we talking about?

Prof. Triggs : All detention facilities in Australia.

Senator LINES: But not offshore detention facilities?

Prof. Triggs : I believe that is correct. In other words, those facilities are operated on the basis of the agreement with the respective sovereign governments.

Senator LINES: But it includes Christmas Island?

Prof. Triggs : Yes.

Senator LINES: Okay. But not Nauru or Manus Island?

Prof. Triggs : No, as they are the responsibility, under the arrangements with the Australian government, of the respective governments.

Senator LINES: Yes. In your opening statement—I do not want to put words in your mouth—I think what you said was that, sometimes, the use of reasonable force might be necessary. If you are saying that is necessary, how to you think that should be dealt with, or is the current law adequate to deal with that?

Prof. Triggs : We do of course appreciate that the serco guards and the former report into disturbances have asked for clarity as to the scope of the power to use force and the limits on that power, and that makes a lot of sense to us. So we welcome an attempt to provide that level of clarity, and that is what I think has been attempted. The difficulty, in our view, is that there has been a split between the power to use force and the limits on that power, which are not included in the legislation. That, we think, is a significant problem. But we also are concerned that there has been a slippage in the language, by comparison with the Crimes Act and police powers—for example, the Australian Federal Police—which places a greater emphasis, for the contractor, on subjective views of what is 'reasonable'. We would suggest that the language needs to be significantly tightened up so that it is both reasonable and necessary as an objective test. We find it curious that the powers of a contract officer should be rather more loosely described and constrained than the very well established powers under the Crimes Act and for the Australian Federal Police.

Senator LINES: When you use the term 'slippage', that is what you are referring to?

Prof. Triggs : It is. It is very much my term—

Senator LINES: Yes, yes.

Prof. Triggs : but I am trying to explain that all the precedents and examples that we have listed in our submission to you use terms like 'reasonable and necessary'. That complies with both international law and international standards but also is relevant under Australian domestic law, where that language of 'reasonable and necessary' is repeatedly employed. We find it a matter of concern that that language is not repeated in relation to this area—quite contrary, of course, to the Attorney-General's guidelines on enforcement powers under Commonwealth law.

Senator LINES: Yes. Is it fair to say that this definition is unique and confined to this instance? Would there be other examples in Australia where that language is used in relation to officers other than police officers?

Prof. Triggs : It is very unusual to use that language. In all of the examples that we have given to you in our submission that language is not used, but there is one example in a narrow area—I am going to ask my colleague to refer to that—where there this has occurred.

Mr Edgerton : The one example that the president referred to, where a more subjective test or a hybrid test had been used, is in relation to police when they are dealing with public order disturbances, so disturbances involving 12 or more people. There are fairly strict criteria before that lower threshold is used: there has to be a group of 12 or more, there has to be a threat to persons or property, there has to be an announcement by a police officer at the rank of sergeant or above that these particular powers will be used, and only after all of those steps have been used is that lower threshold then applicable.

Senator LINES: So what you are saying then is, taking that example of a unique situation where there is warning given and so on, it is taking that meaning and simply applying it across any circumstances in a migration detention facility.

Mr Edgerton : It is applying it to the circumstances that are described in 197BA, which includes 'maintaining the good order, peace or security' of an immigration facility, and we would say that that is broader than dealing with a serious public order disturbance.

Senator LINES: And is 'good order' defined anywhere?

Mr Edgerton : It is not.

Senator LINES: So it is subjective?

Prof. Triggs : Again, the way the law operates in Australia is that for anybody using force it must be an objective standard based on reasonableness and necessity. It is not usual legislative practice to rest a greater emphasis on the reasonable belief of the officer. That is unusual.

Senator LINES: And then to give immunity.

Prof. Triggs : And then, of course, at the end of the day to provide immunity, which depends entirely on proving an almost impossible test of good faith, means you have actually given an almost open opportunity for an officer to use force in a context that is not accountable for practical purposes in the courts, and that is of concern.

Senator LINES: Speaking of hypotheticals, because I am not sure that there are any cases ongoing, but if this bill was passed, could there be proceedings that have been instituted and remain on foot or that are likely to be instituted that would be affected if this proposed section 197BF was enacted?

Prof. Triggs : I do not believe this is retrospective. We do have complaints, and I would have to check—I am not sure whether we have got one precisely before us at the moment, but we have had a number over the years—but were one to be on foot it would not be affected by this legislation.

Senator LINES: Do you think that in order to rely on proposed section 197BF, a person would have to prove that they used no more force than was authorised under section 197BA?

Mr Edgerton : That is one of the problems we have identified in our written submission. It is not clear that that is the case, and we have proposed an amendment that would make that clear. There would be two elements for the bar to apply: firstly, you have to act within the scope of your authorisation and, secondly, you also have to act in good faith. At the moment one way of reading the section is that you only have to act in good faith and the power to use force must be engaged in some way. It is not clear to us that it is a requirement for the immunity that you act within power.

CHAIR: Which recommendation is that?

Mr Edgerton : It is recommendation 7.

Prof. Triggs : So the emphasis there is on it retaining the good faith test, but at the same time adding that force must not exceed the force that is authorised by the section, and that should not be excessive under the terms of that section.

Senator LINES: Do you just want to explain that?

Mr Edgerton : I guess what the president is saying is that it links into some of our other recommendations: you have to set out the scope of the power, you have to set out scope of the limits, and, provided you comply with that power and within those limits, then you are entitled to claim immunity. For example, if you are acting lawfully, you should not then also be liable for an assault or some sort of civil action.

Senator LINES: In the case of these contracted services, what we know is that the contract is for a finite period. I declare that I was an elected official of United Voice, I have been to many of the detention centres and I have acted for guards in the detention centres. So what I know from personal experience is that the contracts generally change over whatever the contract period is—it is usually three years—and they often, in my view, went to the lowest bidder and there is also a high turnover of guards. So how unusual is it that a minister would prescribe the sort of training required to be an authorised person?

Prof. Triggs : One of the things we would like the committee to consider is a recommendation in relation to quality training and the qualifications of persons in these positions. The minister would obviously want the training to meet particular standards. For example, the international standards for the running of detention centres would be a useful best practice guide. That would perhaps come through regulations but at a more detailed level.

Senator LINES: The explanatory memorandum says 'training and qualifications determined by the minister in writing'. I do not know whether that is by way of regulation or whether it is a letter from the minister to the contractor.

Prof. Triggs : I assume it would be at the level of a letter and possibly regulations.

Senator LINES: Does that concern you? Let's say it is a requirement to have a certificate III in communications. Under law, security officers are not allowed to use force, so I am not sure what training would be provided. Are you aware of that?

Prof. Triggs : We are aware of some of the levels of training because of our monitoring work with detention centres over many years; and, as you have quite correctly pointed out, it varies. We have been particularly concerned with the guards in immigration detention centres and children. Our experience suggests that it is very variable. I strongly support any suggestion of the Australian government setting and achieving proper standards of training, but I m not entirely sure how that should be done. I am very happy to take that on notice and we can look at the way in which it should appropriately be done. If it depended totally on the minister writing a letter to this effect, I think that is probably too low a threshold. I think it would be appropriate to look at what is done in terms of the training of police officers. The standards there and how that is regulated would be worth while looking at in terms of these contract guards.

The curious aspect of this is that we have a very comprehensive system for determining training levels and certification and so on for those operating with the use of force in the Australian Federal Police and also at the state and territory level. But you do not get that when you are dealing with Serco guards; it is a matter for the contract. It may be that what happens at the moment is that there is a contract provision that sets a particular level. But I cannot speak to that and I think we should perhaps take that on notice.

Senator LINES: You have gone to my concern, which is that we have got very stringent requirements for federal and state police officers, yet the explanatory memorandum seems to indicate that a letter from the minister to the contractor is sufficient. It does not strike me as sufficient given that 'maintaining good order' is fairly open ended; at some point you would have to spell out what that means. I would have thought that at some point you would have to put in a corresponding definition for 'the use of force'. Does it mean handcuffing someone? Does it mean holding someone down? If so, for how long? It seems to me that those issues need to be determined. Am I correct on that?

Prof. Triggs : You are asking the right questions. In other words, how do you make sure that you meet best practice for managing detention centres of this kind? That dovetails with the appropriate standards that we have for our own police forces within Australia.

Senator LINES: Yes. And bearing in mind that these officers are not police officers, where does adequate training come from and what level is necessary? To one extent, this goes to the protection of asylum seekers if we are all very clear on what the training is and what the outcome of that training is—what is permissible and what is not? But without those safeguards—

Prof. Triggs : 'Safeguards' is the key word. We really need to be sure that at least in the contracts it is very clear that the contractor agrees to meet certain standards in relation to training and background. Of course, this is an international company. We need much more stringent oversight of what those training requirements are.

Mr Edgerton : In regard to the requirements within the contracts for immigration detention service providers, I think the department's submission deals with that to some extent by saying that there are requirements within the contract that those people who are employed as detention centre guards have to have training to particular levels. They say that there needs to be a certificate level IV in security operations or technical security for people who are managing security at a facility. For people who are officers responsible for the general safety of detainees, the department requires that they hold a certificate level II in security operations. Some detail of that is set out in the department submission.

Senator LINES: That is the point I made: that applies to licensed security officers who stand outside of banks and protect buildings. The situation of Serco or any contractor holding a detention centre contract is quite different from the role of a security officer in the general community. A certificate level II is a very low threshold; it is below the trade rate. A certificate IV in security operations does not go to the situations security officers find themselves in at a detention centre. So that too is inadequate, and that is obviously a question I need to put to the department. From my union experience, I am well aware of those qualifications and they do not relate specifically to detention facilities.

Prof. Triggs : I think that is a key point to recognise. In other words, going to the question of mechanism, it would be a matter for placing in the contract the higher standard—whatever that is determined to be. But we would certainly argue very strongly for better training and better certification levels that understand the particular context in which families and children are being held in detention centres.

Senator LINES: The police force has certain powers—and extreme powers. Security officers do not have any powers but they have training related to security operations outside of detention centres. This new bill allows the use of force. Are there examples from the UK or elsewhere of where detention officers can use force? What I am trying to get at is: where does appropriate training come from? It certainly cannot come from the police, because they are not police officers, and it is not covered by the current security officer training. Are there overseas examples of the sort of training that would be required to make sure that force is not used excessively, that it is only used as an absolute last resort and so on?

Prof. Triggs : There are international standards. Obviously this is a global problem. Through the United Nations system, there are model rules for managing detention centres and for prisoners' rights and treatment. If it would be helpful, we would be very happy to get out those model rules and standards and submit them to you. It would take the discussion in a more positive direction if we could show you the kinds of standards that are being employed internationally. They may be valuable because we are dealing with a very special environment here. These people have not been charged with an offence, they have not had a trial and, typically, they do not have access to lawyers. They are often isolated. Special requirements and training need to be engaged. One of the reasons we included the case studies in our submission to you is that we thought it would give some idea of what could be included in training, what goes too far, what is not necessary and proportionate—and what would be, and in what kinds of situations.

Senator LINES: The current bill does not pick up on any of those internationally recognised standards?

Prof. Triggs : No.

Senator HANSON-YOUNG: How do we deal with the situation we have currently got in detention centres? It feels as though every week we hear another story about the mistreatment of people inside—whether they be men, women or children. We have the various documented cases of the use and abuse of force against individuals. The Commonwealth Ombudsman is investigating a number of cases at the moment in regard to the Maribyrnong detention centre—and, I imagine, other detention centres around the country. Do you have some figures in relation to the cases that the commission has investigated and could you give us the flavour of what they cover? What types of complaints are they—in relation to the interaction between those who are detained and those who are guarding them?

Prof. Triggs : I would have to take on notice the exact number but we do handle a number of complaints. We have included four case studies in our submission to give you some sense of how we work. We have also cited some useful examples of international cases considered by the human rights committee. A 12-year-old boy who was detained at the Woomera detention centre sustained a lump to his head and got pain in his face and wrists after he was forcefully transferred by a correctional officer from Woomera to Baxter detention centre. The commissioner found that the use of force against that child in these particular circumstances was more than was strictly necessary and that it therefore constituted a violation of the International Covenant on Civil and Political Rights. There are many other examples. There was a seven-year-old boy, also at Woomera, who was struck across the legs with a baton by an officer while, I understand, he was being carried by his mother. Again, the commission found that the act of striking the child with a baton was in breach of the Convention on the Rights of the Child and the International Covenant on Civil and Political Rights. We have other examples I could go into, but I think these are the sorts of things that could inform a training program.

Senator HANSON-YOUNG: You have outlined in your submission and again today the concerns you have around the lack of clarity on what 'good order' means and the fact that there are no real restrictions in the legislation at all about the use of force and what is excessive and what is not. From reading through the various submissions that have been given to this committee and looking at the bill, it strikes me as incredibly peculiar that the Australian parliament is being asked to give security guards in detention centres more powers, less oversight and more immunity than Australian Federal Police officers. Is that the way the commission sees it?

Prof. Triggs : Put bluntly, that really is the upshot of this proposal. It is different language which gives a greater emphasis to this subjective view of the officer and appears to give immunity—unless you can demonstrate bad faith, which is virtually impossible. Broadly speaking, the thrust of the legislation seems to be out of kilter with the way in which we would normally deal with the use of force by police. In particular, we would come back to the guidelines of the Attorney-General's Department, which are very clear on the way in which these matters should be legislated.

Senator HANSON-YOUNG: You say it is difficult to prove what 'bad faith' means. Would you be able to elaborate on that? Why is that the case?

Prof. Triggs : There has been quite a lot of legal jurisprudence on this question and senior courts, including the Australian High Court, have explained the very high threshold you must prove to demonstrate bad faith. It is very hard to show the subjective bad faith of a serving officer acting apparently within the course of their employment. It is very hard to prove it.

Senator HANSON-YOUNG: If 'reasonable force' is normally the criterion on which something like this would be judged, why use that as the threshold?

CHAIR: You cannot ask Professor Triggs why the government did that—I think that is a bit beyond—

Senator HANSON-YOUNG: Sure, maybe it is a rhetorical question. I will ask them, Chair, why they are using such an unusual—

CHAIR: Perhaps you could ask Professor Triggs what her view on that is. I do not think you can ask her what the government has done that.

Prof. Triggs : The critical difficulty—and at paragraph 131 in our submission we cite, in particular, Justice Gyles in and the Federal Court—is that proving bad faith requires proof of the actual state of mind of the defendant and it is extremely difficult in practice to demonstrate that state of mind as being one of bad faith. Indeed, one might very well say that, on the evidence before any tribunal or court, the officer was acting in good faith. Our concern is that, regardless of whether they were or were not acting in good faith, they should be accountable when they have acted in a way that is excessive and beyond what is reasonable and necessary. That is why we keep coming back to this test: is it necessary and reasonable on an objective standard? The High Court has adopted that test over and over again and it is in all of our other legislation relating to police powers: I think that is very common in the law. It is an understood test and it is one that the courts can apply relatively reasonably. But the judges are quick to say that it is almost impossible to demonstrate a lack of good faith.

Senator HANSON-YOUNG: From reading through the government's justifications for this legislation, one of the things that strikes me is the changing demographic within detention centres. They argue that the percentage of compliance clients—that is, those who have been in Australia on various types of visas, committed a crime in whatever way and breached their visa conditions—being held in detention centres is climbing, as opposed to those they are in the detention centre with, who are of course asylum seekers. Do you have a view on the appropriateness of keeping compliance detainees in the same facility as asylum seekers?

Prof. Triggs : It is not something that we have particularly adverted to but we do understand that that shift is occurring. I think we would have to say as a matter of principle that it would be inappropriate to separate people who have failed to comply with conditions and therefore, one could say, have breached a condition of their release or their visa. That is somebody who has allegedly committed an offence. It is appropriate that they be kept separate—particularly if they are related to assaults—from those who come as asylum seekers, who have asked for Australia's protection but have committed no offence beyond arriving without a visa. So we would see a need for separation. It may be that that is possible in some facilities but not others, but it would not be a healthy thing to have the two together.

Senator HANSON-YOUNG: My understanding is that the UNHCR has guidelines in relation to this. Could you have a look at that and give us a comment from the commission's perspective.

Prof. Triggs : We would be very pleased to do that.

Senator HANSON-YOUNG: I would appreciate that. My final question is in relation to staff themselves. It strikes me that, if we take the blunt analysis that staff are going to be given more powers, less clarity and this overarching sense of immunity with no independent oversight, that is going to build a culture of whatever happens happens—bad luck. What do we do to ensure that staff in this situation protect their own rights and that they have an understanding of what should be expected and what is expected when it seems so fuzzy except for a culture of allowing excessive force?

Prof. Triggs : We always take the position that where you have a right it must be countered in part or balanced by a responsibility—that, if you have a right to use force, there are certain responsibilities to go with it. Here we do not believe that this bill properly balances those obligations. It is extremely important in this context that, where that use of force is employed, it is employed in a way which is regulated by legislation as to both its scope and the particular limits. So we do find it unfortunate that there has been a separation of these two—that you have got the right to use the force but the limits on that use of force are in another policy, document or regulation. We think it would improve that culture that you are concerned about if the limits on the use of force and the rights and responsibilities were paired in the legislation.

I would like to repeat, if I may, that Serco as a company were not asking for what they got; they were simply asking for clarity. They were not asking for a greater right to use more force or for anything else; they were simply saying, 'When we are in these situations of disturbances, and possibly before the Australian Federal Police arrive, we want to know what our role is and what the limits are on that force. We have a right to know that.' They are in a dangerous situation sometimes, and they need to know what they can properly do. For example, if they are given instruction to remove children from one detention camp to another but the children do not want to go, how do they deal with that. They have a right to know that. It is a very sensitive and difficult situation and they have a right to have that information. So it is clarity they asked for—and we think, oddly, it is clarity they do not have in this bill.

CHAIR: Professor, from your experience in investigating detention matters, can you give us not necessarily a factual but a broad example of what might be considered to be bad faith as opposed to poor judgement or something done on the spur of the moment that, perhaps if it were not a critical situation, the officer would not have done? Is there even, as I say, a made-up example of what might constitute bad faith?

Prof. Triggs : I am really just developing this, but I will take the example I gave of an officer who hit a child on the legs with a baton while the child was in the arms of his mother. Let us assume that this guard had particularly poor relations with the family—the family had been rude to the guard and the guard rude to the family and there had been a bit of tension going on between them for some weeks or months in these environments—and the officer just lost his temper and lashed out. You might say that there could be some objective evidence that demonstrated bad faith—difficult to prove. But then you could have exactly the same facts where the officer felt that the child was getting hysterical and needed to be calmed down and he thought, in the heat of the moment, that this was the thing to do. I do not know that anybody would ever say that hitting a child with a baton would be acceptable but, if we took that as a hypothetical, you might say one could be demonstrated objectively to be actually bad faith and the other one a poor judgement in a situation in which it should be dealt with in the proper way.

CHAIR: In the case of the officer who hit the child in its mother's arms, what was his reason for doing that? Was he ever questioned by anyone? Did your investigation show?

Prof. Triggs : Could I take that on notice?


Prof. Triggs : We have given it to you, so in fairness I should give you some background to it. That is the role we play; we investigate the facts before we make any findings. If I may—and it may need to be in confidence—I would be very happy to get back to you on the background to that case.

CHAIR: I would be interested in what the officer said. It seems incredible that a child in their mother's arms would be belted by anyone.

Prof. Triggs : It seems extraordinary.

CHAIR: Perhaps his excuse was that he was meaning it for the mother but he had bad aim and got the child instead. Not that that excuses it, but I would just be curious.

Prof. Triggs : I would be very happy to give you some background but confidentially.

CHAIR: Thanks for that. Mr Edgerton, in the provision that gives some excuse for what would otherwise be a problem, you mentioned tort. Is civil law excluded under that provision or is only the criminal law?

Mr Edgerton : My understanding is that the intention is to exclude both civil and criminal liability unless people are acting not in good faith.

CHAIR: Professor, is the complaint mechanism a good thing? I note from the minister's second reading speech that he says, 'the complaint mechanism does not restrict a person from making a complaint directly to another source,' and then gives some examples—which includes the Ombudsman. Is the provision of an additional complaints mechanism good, bad or indifferent? I will ask the second part of my question at the same time, because you could perhaps answer them both at the same time. You asked for a copy of any complaint to go to the Ombudsman or for not taking away the right to refer it to an Ombudsman. There is a third part to my question and, because we are running out of time, I will ask them all at once. The amendments require the secretary to provide appropriate assistance to anyone wanting to make this complaint. Is that good, bad or indifferent or does it need amendment or clarity as to what the assistance might be? So there are three quick questions.

Prof. Triggs : With regard to the last question, that is what happens in relation to matters coming before us. So we would say that assistance with the complaint is appropriate. Obviously it is always good to have these things strengthened, especially access to legal advice—but that takes us somewhere else.

CHAIR: Under this provision, the department is required to give the complainant assistance in filling out the forms, interpreting and—

Prof. Triggs : That would be a step forward and would be very welcome.

CHAIR: Is that how you read the bill?

Prof. Triggs : I think that is what we are assuming it is saying. What it does, of course, is mean that the kinds of complaints are then articulated in a clear way and it makes it easier for everybody. The process that we have suggested is that there be an oversight by the Office of the Ombudsman, which is exactly what the Ombudsman's office does in relation to the Australian Federal Police. Again, what we are trying to do is say, that, if you are going to embark on a legislative amendment in this area, it makes sense to have it consistent with the way in which we do it in other contexts.

CHAIR: As read the bill, if the complainant complains to the secretary, he or she can at the same time send the copy to the Ombudsman. I assume when he or she gets a response from the secretary, he or she then has the option of then referring both the complaint and the secretary's response to the Ombudsman. That is not taken away, is it?

Prof. Triggs : It comes back to the circular problem of the person making the complaint not knowing that they have the right to do so.

CHAIR: But I would assume that the provision saying that they be given assistance might—

Prof. Triggs : We would see that as implying—

CHAIR: That they be given assistance also—

Prof. Triggs : that they would be given assistance to know what their rights are. Indeed, if that were to be spelled out, we would see that as a significant advance.

CHAIR: Thanks very much for your assistance here today. We very appreciate your attendance here today.