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Legal and Constitutional Affairs Legislation Committee
16/04/2015

de VEAU, Ms Philippa, General Counsel, Department of Immigration and Border Protection

OUTRAM, Mr Michael James, Deputy Chief Executive Officer, Border Operations, Australian Customs and Border Protection Service

SOMMERVILLE, Mr Craig, Acting First Assistant Secretary, Status, Resolution and Detention Operations, Department of Immigration and Border Protection

[15:11]

CHAIR: I welcome officers from the Department of Immigration and Border Protection and the Australian Customs and Border Protection Service. Thank you for your submission. I am sure you have all been to Senate committees before, so I will not waste your or our time in telling you the rules. I am sure you know of them. Do any of you have a prepared opening statement?

Mr Outram : Yes.

CHAIR: We will hear that and then I will ask all of you if there are things that you have heard while you have been here that you would like to respond to. One of them I particularly alerted you to, and there are other things that I would like to put to you, and of course my colleagues will also put questions to you.

Mr Outram : I am here as the representative of the Secretary of the Department of Immigration and Border Protection. The intention of the bill is to amend the Migration Act 1958 to confer limited powers on suitably trained and qualified authorised officers to use such reasonable force against any person or thing as they reasonably believe is necessary to protect the life, health or safety of any person in immigration detention facilities, and maintain the peace, good order and security of that facility. The question is: why is the use of force now required to maintain good order in detention centres? As you have heard, whilst the population in detention facilities is changing, the genesis, really, of this inquiry and, for example, the Hawke-Williams review, was as a result of a different demographic at that time. It may all change again over the next few years, so I acknowledge some of the difficulties. What we are trying to achieve is the maintenance of standards of safety and security within detention centres that people are entitled to and enjoy within the broader community.

The current detention environment is challenging and complex, as we have heard today, and consists of a diverse population of detainees which is constantly changing. That includes, of course, mixed ethnic and cultural groups. At the moment, there is an increasing proportion of detainees who present behavioural challenges, and we have heard a lot about that this afternoon, as well as criminal and national security concerns, including those subject to visa cancellation on character grounds; detainees with adverse ASIO security assessments, including some who have a connection with religious extremism; detainees who have significant mental health issues and are vulnerable; and detainees whose cases are legally complex and may take a long time to resolve. Recent high-profile escapes, incidents of violence, allegations of abuse and other disturbances have highlighted a notable shift in the risks present in the immigration detention environment. Public order disturbances can and do escalate rapidly, often before local police have the ability to respond, and they involve significant property damage to facilities and the potential for serious injury and even loss of life.

We are grateful for the support provided by the local police, the police services around Australia, who do respond to disturbances as best they can. We do, as has been mentioned, have some memoranda of understanding with some of those. However, we also note that they have many other responsibilities, and the time frame for their response cannot be guaranteed. This is particularly so in more remote locations. We wish to avoid placing detainees and others within the facility at risk of harm should the response by police to a disturbance be delayed.

In our view it is vital that authorised officers have a clear power and authority to take all reasonable and necessary and proportionate measures to restore public order in detention centres. Authorised officers will be supported in this role with appropriate training—and we talked a lot about training—and clear guidance on using the minimum force necessary, noting that, in many situations, use of sound negotiation skills will often be the better response. Individuals currently have a range of avenues to raise concerns and complaints that they may have about their treatment within immigration detention. The bill provides an additional way for a person to raise a complaint about the use of force: with the department secretary. It is an additional safeguard.

We also are very focused on the administrative detention aspect, but we are happy and do seek to learn from the experience of other organisations, whether they be corrections organisations, administrative detention organisations or police organisations. Our circumstances in the Commonwealth are pretty unique in the detention environment. We believe the bill provides a measured, balanced and reasonable response to dealing with a small but nonetheless problematic number of uncooperative and destructive individuals who interfere with the good order, peace and security of an immigration detention facility—some who do not hesitate to put the life of others, and the safety and health of others, including sometimes their own, at risk.

I would like to thank you for the opportunity to appear at this hearing. You may have a question: why am I here rather than a deputy secretary from another part of the department? The answer to that is that I will be in the Australian Border Force on 1 July, and on 1 July the operational management of detention centres will fall to the Border Force. Far from being a militarisation or a step in the wrong direction around detention centres, it will deal with some of the issues that we have heard about this afternoon—for example, national standards. In terms of use of force, the Australian Border Force will adopt the same standards for use of force as the Australian Federal Police. I myself am a former Australian Federal Police officer—

CHAIR: I have seen you before, I think.

Mr Outram : and we are bringing across those standards.

CHAIR: I might say only at committee hearings!

Mr Outram : Indeed. It would be possible, as we go forward, for us to evaluate the training standards with any service provider in relation to the use of force training that is provided. In addition we will be putting in place additional rigorous governance and management—for example, there will be a uniform superintendent from the Australian Border Force present at the detention centres not only to ensure that the service provider obeys and sticks to the requirements of the contract, but also to assist us in relation to identifying any problems of corruption, inappropriate behaviour, criminal offences and so on so that they are followed through upon, including complaints from detainees.

At the moment the situation is that any use of force by the service provider has to be reported to the department verbally within one hour and in writing within six hours. We are proposing, when the Border Force stands up on 1 July, that any use of force report will be treated in the same way as it would be in the Australian Federal Police. It would be referred automatically to our professional standards area, and the proportionality, the necessity, the kind of force used, the circumstances in which it was used will be reviewed. We could consider implementing additional safeguards in relation to vulnerable people including children. In the cases where use of force is used, that could be referred to a senior executive service officer who is independent of Border Force for further review. There are other ways we can strengthen the governance around the use of force in the reporting regime.

On a final point, in relation to no immunity, on my read of this legislation, any person who commits a criminal offence with use of force is subject to criminal sanction. So anybody who unnecessarily, unreasonably, disproportionately uses force that leads to serious injury of somebody is subject to the same criminal sanctions as would be a police officer—and certainly police officers are not immune from criminal prosecution nor would somebody be under this legislation.

CHAIR: Could you say that last sentence again.

Mr Outram : Neither would anybody in the Australian Border Force or Serco, in relation to the use of force, be exempt from or immune from criminal prosecution for an assault.

CHAIR: Except in the cases specifically set out in this bill.

Mr Outram : Well if the force is deemed to be reasonable, necessary and proportionate then it is like that for a police officer but that is a matter for the court to determine. For example, when somebody dies or grievous bodily harm is committed, there would necessarily be an investigation by the police into that. The police would probably if there was evidence and witnesses came forward refer that to the Director of Public Prosecutions for a decision as to whether or not a prosecution should occur. The DPP may in that situation take into account the legislation and whether or not the force appears reasonable. They may determine that is a matter that should be dealt with by the court. But there certainly is no immunity. I accept there are some legal arguments about the nature of the legislation and the way it is written but certainly in my read of it and certainly on legal advice—and our senior legal counsel would speak to that—there is no immunity in assault for people who commit criminal assaults as a result of this legislation.

CHAIR: I interrupted you at a crucial time in your evidence. I want to get you to repeat what I understand you said—that is, from 1 July the Australian Border Force, which is the successor to Customs, a uniformed arm of the service, is now going to take direct control of detention centres. I think you said a uniformed superintendent would be at every detention facility?

Mr Outram : Yes, responsible for each detention facility. The outcome we are trying to achieve here is, as best we can, to mirror the standards of safety and security that are enjoyed by members of the community by all people in detention facilities whether they are detainees, whether they are employees or whether they are visitors.

CHAIR: I am not sure when you arrived but you may have heard people saying that under this act Serco officers—almost a derogatory term these days and apologies to Serco—would have more protection than Australian Federal Police officers.

Mr Outram : Before legislation was drafted, a lot of discussions took place between ourselves and the Attorney-General's Department. Comparisons with a lot of other legislation was undertaken across Australia. There are some similarities between this legislation and, for example, Western Australian corrections and Victoria Police and there are some differences. So that comparison and analysis was undertaken prior to drafting.

CHAIR: You mentioned the demographics are changing, which people often say. Assuming that they all know but I do not know, perhaps my colleagues do not know and possibly people listening to this do not know, could you just briefly say how the demographics have changed. What sort of people did there used to be and what sort are there now?

Mr Outram : Broadly speaking, three or four years ago there were far more people who were classified as asylum seekers, for example, a far greater proportion of the detention population and a far greater number than exist now. As has been said, we are now tightening up in relation to the basis on which visa cancellations are being made based on people's behaviour, criminality and associations with organised crime. We have ASIO security assessments as well. As the result of that, if people who are committing certain types of criminal offences—drug-trafficking being one of those—are here on a visa then those visas are being cancelled and we are seeking to remove those people from our community and from our society.

CHAIR: But you are putting them into migration detention rather than into the jails?

Mr Outram : Yes, because we have no ability to put them in the jails because either their prison sentences are finished or there are other reasons why we need to remove them from the community to get them on a pathway out from Australia and it is determined that the risks of leaving those people in the community are too great. Of course this is a difficult situation in terms of decision making, the extent to which the community accept that we are willing to allow people to remain in the community when we know, for example, they have committed certain types of criminal offences or are involved in certain types of criminal conduct or whether we actually seek to put them back into detention before they are removed. In other words, there are proportionately more people who, as has been said, are on the 501 pathway than there were three or four years ago. That is raising the risk profile of the centres themselves because we are getting more people in there with behavioural problems.

CHAIR: You would have heard evidence throughout the day about the wrong groups of people being put in with the wrong groups of people. I think you heard the last set of evidence. Do you have any comment on a convicted rapist being put in with relatively low-risk youths?

Mr Outram : I will get Craig to talk in a moment about some of the detail. As a general comment, what I would say is that our to intention here is to get a more compliant environment in the detention facility so that all people in those facilities can enjoy a better quality of life. A part of that relates to this bill in the use of force in extreme cases where people need to be restrained or prevented from escaping et cetera. From our point of view, this is about creating a safer, more secure environment in detention facilities and not a punitive one, on the contrary. In relation to the more detailed question about what efforts are being made to try and risk manage the detention population, I will ask Craig to address that.

CHAIR: First of all, do you accept, Mr Sommerville, some of the evidence given where nasty rapists were put in with young boys or young girls at the same centre. Do you accept that that happened?

Mr Sommerville : I will not say that there has never been a mistake but what we are trying to do to make sure that we do not make those sorts of mistakes and we manage the population of detainees better is use our network of immigration detention facilities as a strategic network so all of the facilities are in play at once as it were. They offer a range of different capabilities from very secure through to very low risk. I heard some of the people giving evidence refer to places like the immigration residential housing at Villawood. Villawood is a complex campus in that has very low-risk housing and, quite distant from the low-risk housing, it has a high-risk facility.

Our approach broadly is around looking at the individual. We think about the risk to the person—that is, everything around their wellbeing, their health needs, their issues around vulnerability and so on through to the risk they might represent to the facility and to other members in the facility. We make an assessment of that with Serco as to what their risk rating ought to be.

Senator LINES: Who are you talking about?

Mr Sommerville : I am talking about detainees.

Senator LINES: You are not talking about people who have had their visas cancelled?

Senator HANSON-YOUNG: Compliance cases or asylum seekers?

Mr Sommerville : Either, so it is people who are arriving into the facility. At the moment we are not seeing asylum seekers at all other than some that might have had their visas cancelled. Most of the people we are seeing coming into the facilities at the moment are people who have had compliance issues. As we receive people, we make an assessment and then we monitor behaviour along the way.

Senator LINES: Who is the 'we'? Is it you and Serco?

Mr Sommerville : We and Serco, yes.

Senator LINES: So who does the first assessment? Is it Serco?

Mr Sommerville : They will take into account known history of the person such as: any case history around them; if they were coming out of prison what were they in prison for; do we know what their behaviour in prison might have been like?

Senator LINES: Does Serco get a charge sheet?

Mr Sommerville : We try to obtain that for them. In different jurisdictions it can be a little different as to what information we get. We are working with jurisdictions to make sure we get a more holistic picture that is consistent. We then look at where we might best place that person. We make sure that we are not putting people who are very dangerous against people who are very low risk. So, by and large, we will put people who we believe are higher risk into places like Blaxland, which is an annexe of Villawood or into Maribyrnong or to a much lesser degree to Christmas Island. Where we have people who are low-risk, we will put them into places like the MITA, Melbourne Immigration Transit Accommodation, as an example or there is a similar facility in Brisbane and one in Adelaide. We will keep monitoring their wellbeing and their impact on people. Most of the facilities are in a compound arrangement. The residential parts of the facilities are in a compound so we can do some separation and then we can manage through control plans access to facilities whether it is the recreation facilities, education facilities, internet and the like.

Senator LINES: This is Serco doing this?

Mr Sommerville : Yes.

CHAIR: Evidence has been given that two of my colleagues have written to the minister, which is the department, and raised specific cases. I was told that they have had no response. Could you, Mr Sommerville, on my behalf, follow-up those within the department? I do not have any names because I did not ask but it was a Liberal and National Party colleague of mine in Victoria. There may be a reason why they have not responded.

The terminologies, and this is in the wider public as well, are confused. Is there anywhere I can get statistics on how many, if I might call them for want of a better description, boat people are still in what sort of detention. Do we have those statistics? What sort of visa cancellations are in what sort of detention facilities or what sort of detention—perhaps not in a facility? How have these numbers changed over recent years? This is for me and others to get a better appreciation of who is there, why they are there and whether the number is increasing or decreasing.

Mr Sommerville : I can give you a comparison between the statistics between 31 July 2013—

Senator HANSON-YOUNG: I have a flight to catch so I will put a number of questions to the department on notice.

CHAIR: I thought I asked you and you said you did not have a constraint of time.

Senator HANSON-YOUNG: No-one asked me.

CHAIR: Otherwise, I would have gone to you first. And I did indicate before that we would continue until all senators had exhausted their questions. You did not indicate that to me so I am sorry, Senator Hanson-Young, that you only as always seem to listen to part of the evidence and not the other part.

Senator HANSON-YOUNG: That is not fair, Chair. You did not ask me.

CHAIR: I said to you we would last as long as anyone had questions. You know my policy. I would willingly have given you the first go.

Senator HANSON-YOUNG: I am not suggesting that you deliberately did not go to me. But do not suggest that I did not—

CHAIR: All you had to do was indicate that you had to go. I have already had that conversation with Senator Lines about availability and I thought you were in that category. You had not indicated to me or the secretariat that you had to leave early, hence my requirement for approaches to be made to sensible politicians.

Senator LINES: That is unfair and shameful.

CHAIR: If you want to give some evidence, you could put your name down and come forward. I will debate you anytime.

Senator LINES: I have said he really patiently. I have a lot of questions for the department.

CHAIR: Yes, and we can wait. You have indicated to me you can stay all day, and the department has—

Senator LINES: Yes, but I do have another appointment, so I would like to get—

CHAIR: That is news to me. I particularly asked you—

Senator LINES: For goodness sake! We are now wasting time. I have waited all day to put legitimate questions to the department.

CHAIR: Perhaps you could keep quiet and we will have my—

Senator LINES: I am not getting into issues about whether or not I am a serious or whatever senator.

CHAIR: We will have my—

Senator LINES: I am here to ask questions and I would like to put them.

CHAIR: Perhaps if you stop interrupting we can have the answers to my question—

Senator LINES: Perhaps if you stop talking, we might get somewhere.

CHAIR: which I indicated would be the last of my questions before you and Senator Hanson-Young were invited to ask yours.

Senator LINES: Let's get on with it, please.

CHAIR: Anyone who follows these proceedings will know that I am scrupulously fair in offering time—

Senator LINES: I have not even mentioned the 'fair' word. I have said to you I have waited patiently all day to put my questions to the department and I want to get to them.

CHAIR: Well, if you stop and let Mr Sommerville finish—

Senator LINES: It was Mr Outram who was answering, actually.

CHAIR: Mr Sommerville was also giving some evidence. So please continue.

Mr Outram : The comparison I can give you is between 31 July 2013 and 31 January 2015. In 2013 on that date we had 9,620 illegal maritime arrival people in detention. We had 355 overstayers, 97 people who had had their visas cancelled and 129 people who had arrived by air without immigration clearance.

CHAIR: When was that, sorry?

Mr Outram : On 31 July 2013. If we come forward to 31 January 2015, there were 1,635 illegal maritime arrivals, so that is a change from 94 per cent to 71 per cent of the population.

CHAIR: That is 1,300—

Mr Outram : 1,635.

CHAIR: Down from 9,000?

Mr Outram : From 9,620. Plus, the percentage of the overall population dropped from 94 per cent to 71 per cent. Overstayers increased from 355 to 414, and that is an increase from about four per cent to about 18 per cent. Visa cancellations went from 97 to 189, a jump from around one per cent to around eight per cent of the overall population. Then air arrivals not cleared at immigration were 54 in 2015, which is a reduction from 129 in 2013. So that gives you a flavour of—

CHAIR: Is that the sum total of the people in some form of immigration detention?

Mr Outram : People in immigration detention by arrival type, 31 January 2015.

CHAIR: That is about 1,600, 400, 200 and 50, so approximately 2½ thousand.

Mr Outram : Not even that, yes.

CHAIR: That is the total in Australia?

Mr Outram : Yes.

CHAIR: And what is the latest figure on children? Does anyone have that?

Mr Outram : Yes, we do.

Mr Sommerville : At the moment, as of today, I understand that we have 115 children in detention on the mainland.

CHAIR: I indicated previously that it was the department's intention and hope, expressed at previous hearings of this committee, that that would get to zero by the end of the financial year, if I recall—I am not holding you to it—with the exception of what I was told were children who would never leave because their parents were in a situation that they would never leave. Is that still the department's intention?

Mr Outram : It is our intention to reduce that as far as we possibly can. We do not want children in detention any more than anybody else.

CHAIR: No.

Mr Outram : We have worked very hard to reduce the number, we have reduced the number and we will continue to do so. As for time frames, I cannot give you a time frame now as to what has been committed to, but I can come back to you on notice and provide a response to that.

CHAIR: I was told with some confidence that the number of children as of yesterday was 123. Are you certain of your 115 figure, Mr Sommerville?

Mr Sommerville : That is as I am advised by my staff, but we can check that and make sure that gets to—

CHAIR: I would hope that your department would be the ones with the accurate figures.

Mr Sommerville : I hope so too, but that is how I am advised today, of today's statistics.

Senator LINES: There are none on Christmas Island?

Mr Sommerville : None, no. They were all moved off before Christmas.

Members of the audience interjecting—

CHAIR: I might just repeat that for the record, because I suspect that Hansard will not have got that. By way of advice from outside the table: 124 yesterday and 115 today, as an agreed figure. And the suggestion was made that some went to Nauru yesterday. Does that—

Mr Sommerville : I think we should take that one on notice and clarify because there may have been some other releases in terms of people going out on some form of visa from held detention. If it is okay with the committee we will take that on notice.

CHAIR: That would be very acceptable. That is the best way to do it.

Mr Sommerville : The numbers do jump up and down a little bit.

CHAIR: Mr Sommerville, are these numbers regularly released by the minister or the department? There is often a lot of misinformation because there is lack of information. In the event that the department regularly gives the figures—I am surprised to hear that there are less than 2,500 people in immigration detention. From my understanding—and I am perhaps better informed than many—I would have thought there were literally thousands and thousands of people in detention.

Senator LINES: The amount of hype the government makes about it you would think that too.

CHAIR: We all learn, don't we. Senator Lines.

Senator LINES: Regarding the scope of the bill, we have heard evidence from lawyers today that their understanding is that the scope of the proposed bill extends to community detention. Can you clarify that?

Ms de Veau : As it is worded, it does not. What it does provide is an additional aspect of how it is going to apply to the definition of detention facilities and that is in subsection 3—there is a provision for an additional approval process, and that might enliven in the future, were it to be picked up, the ability to include community detention. But as it is drafted and were it to be passed it would not include community detention.

Senator LINES: What is the process to include community detention?

Ms de Veau : As it stands, the bill provides for the definition of an immigration detention facility to be amended to be a detention centre established under the act or a place approved by the minister under subparagraph (b)(v) of the definition within the Migration Act. So the minister would need to make an approval that links back into that definition such that it created a new category of detention facility.

Senator LINES: How does the minister do that? What is the process?

Ms de Veau : The process is that he would as a matter of policy consider whether he wanted to enliven such a course of action.

Senator LINES: So no parliamentary oversight—policy change?

Ms de Veau : I would have to take that on notice to see whether the approval that links back into subsection 1 is by regulation or disallowable instrument.

Senator LINES: If you could do that. I am interested in the parliamentary oversight. Thank you. Does it include transportation?

Ms de Veau : Again, it is not intended to, because there are some specific provisions that relate to transport; and that again is in the definition of an immigration detention centre within section 5 of the act, which talks about moving people in the company of officers and restraining them in that context of moving them. Then there are some quite specific definitions of transport that do not apply to the circumstances we have been discussing today, which are about people on aircrafts or those sorts of examples.

Senator LINES: So that I am very clear: the bill we are talking about—and you are going to clarify this ability the minister has to invoke other detention facilities—are the buildings that currently exist within Australia's boundaries, including Christmas Island?

Ms de Veau : Yes.

Senator LINES: We heard some contrary evidence, I think, from Mr Outram regarding immunity. I am looking at your explanatory memorandum, particularly page 2, and it says:

The Bill inserts a provision that imposes a bar on any action against the Commonwealth (including an authorised officer) in respect of the exercise of the power to use reasonable force in an immigration detention facility if the power was exercised in good faith.

What is your understanding of that? What does that mean? There has been a scuffle in a detention facility; an officer has used force. What happens? The asylum seeker makes a formal complaint. What is the procedure?

Ms de Veau : Under the bill or in the current status?

Senator LINES: Under the bill.

Ms de Veau : Under the bill, what would happen is: any bar would only protect—this is the intention of the provisions being put in there—not only an act in good faith, but there is another threshold question which comes before it, and that is: is it within the power of the act? Earlier there was some commentary around prosecutions for assault. An assault, by definition, includes an unlawful application of force. So, if the application of force was not within the bounds of the law set out in terms of the reasonable force, the additional belief and also the purposes for it—because there are two purposes that have to hook into that—if it is not within that power, it is not lawful, which—

Senator LINES: So that decision is made by a magistrate?

Ms de Veau : That would be a threshold question for a court, as to whether, in an action, either for tort or something else—

Senator LINES: That is criminal and civil.

Ms de Veau : Yes—whether that would apply. The bar is not intended to cover any protection for a prosecution, because, by its nature, it would be an unlawful application of force for assault, but definitely in relation to, for instance, an action in tort a court who received such an action would have to consider whether it was within power and in good faith and make a decision about whether the bar applies or not. Additionally there is no bar applying to the High Court's jurisdiction.

Senator LINES: That bar does not apply currently, though, does it? It does not apply against police officers?

Ms de Veau : In relation to the AFP?

Senator LINES: That test, yes.

Ms de Veau : There is a series of comparative legislation for policing agencies as well as, perhaps, some detention environments, and they each have different laws around this. Some of them extend personal liability as a bar. Some extend the Commonwealth, and they might change in terms of what is covered.

Senator LINES: Let me be a bit clearer. If it is a like for like, an asylum seeker claims that unreasonable force has been used against them, the tests are there, it goes before a magistrate and the magistrate makes a decision. If I am out in the street and I make a claim against a police officer that that police officer used undue force, the tests are different.

Ms de Veau : It depends whether you are looking on a criminal or a civil standard.

Senator LINES: Let us assume they are both criminal standards.

Ms de Veau : For the criminal standard, a police officer who uses unreasonable or excessive force is equally available to be prosecuted for an unlawful application of force.

Senator LINES: Yes, but the immunity is not there for the police officer, is there, if the unreasonable force is not proven?

Ms de Veau : If it is an assault for a police officer, it would also be an assault under the good order bill.

Senator LINES: Yes, but in this one there is a bar there that we have to prove that it was not good order in order for the prosecution to go forward.

Ms de Veau : A prosecution authority would consider whether it was unlawful, and there would only be reasonable prospects of conviction if they were satisfied that they could establish it was unlawful. Therefore the bar would not even need to—

Senator LINES: But that does not exist when I make a claim against a police officer. I do not have to prove that there was no good order.

Ms de Veau : You would need to prove it was an unlawful assault. It is the same thing for a prosecution, and of course it would not be the victim who is proving it; it would be the prosecution authority. The same situation would apply for both.

Senator LINES: Yes. There is this use of 'unlawful', but, in the case of an asylum seeker, the bar is good order. If the good order is not there, that makes it unlawful.

Ms de Veau : It needs to be reasonable for it to be lawful, and you could only succeed in having the bar lifted if it was unreasonable or in good faith. That is right.

Senator LINES: So you have to get over some tests.

Ms de Veau : That is right, yes, but the prosecuting authority would not need to do that. My view is that, in a civil suit, a court would look at that as a threshold question for a prosecution. If they were able to establish beyond reasonable doubt it was unlawful, then they would have already satisfied that.

Senator LINES: Just looking now at this issue of training, the explanatory memorandum—I think it is on page 2, but sometimes the Senate puts different numbers on them—says:

The Bill also requires the Minister to determine those qualifications and that training in writing.

That is the next paragraph under the dot points at the top. How is the minister going to do that? We heard this morning in evidence that, if that is in a letter, that avoids parliamentary scrutiny; it is not a disallowable instrument. What is your understanding of how the minister is going to determine those qualifications?

Ms de Veau : That is obviously a matter for a recommendation to be put to the minister, and for the minister to make a decision about the standard he wants to uphold.

Senator LINES: Who puts that recommendation—the department?

Mr Outram : Yes.

Ms de Veau : Yes.

Senator LINES: How does Serco, or the contracting agency, get to know what the qualifications are? Will it be in a letter?

Ms de Veau : Any standard that the minister sets in accordance with this provision under the act would then need to be complied with by whoever was—

Senator LINES: I understand that, but how does that get conveyed to Serco?

Mr Outram : Through the contract.

Senator LINES: Is it in an email? Is it in a letter? How is it conveyed?

Ms de Veau : In any number of ways, but presumably any contract that required a particular level of training would need to be consistent with the standard the minister set.

Mr Outram : It would be through the contract. Obviously we have regular meetings with—

Senator LINES: I am asking the legally qualified person here.

Ms de Veau : With respect, Senator, I do not know that the transfer of that information is a legal question. From a legal point of view, the hierarchy is—

Senator LINES: I get that whatever the minister sets down has to be complied with.

Ms de Veau : Yes.

Senator LINES: What was not clear this morning was that sometimes these matters are in regulation; sometimes they are disallowable instruments. It seems that what the explanatory memorandum is saying is that it is neither of those things. So will it be a letter or will it be part of the contractual arrangements with a contractor? My first question is: where will it be?

Ms de Veau : For the minister to make a determination, he will need to make a decision. That decision will need to be recorded. For it to have any impact and effectiveness it will need to be communicated.

Senator LINES: And how will that be done?

Ms de Veau : That is not necessarily a legal question; it is a question of the relationship between—

Senator LINES: Okay, then—who can answer this question?

CHAIR: Mr Outram is trying to.

Mr Outram : It would be dealt with through the contract.

Senator LINES: So it would be put into the contract?

Mr Outram : Absolutely.

Senator LINES: Are the contracts publicly available?

Mr Outram : I believe they are. I believe they are like any contract; I do not think it is a secret contract. I will check that.

Senator LINES: Can we get a proper answer—a yes or no on that?

Mr Outram : Absolutely.

Ms de Veau : I would want to take that on notice, given there might be some commercial-in-confidence matters in there.

Mr Outram : There may be commercial-in-confidence elements. There may be some operationally sensitive elements, but we can certainly take that on notice and pass the contract—

Senator LINES: But it may be commercial-in-confidence, so it is not available?

Mr Outram : What I would say is that the contract does already require, for example, a biennial rolling program of refresher training, and so there are training elements contained—

Senator LINES: Is that contract available?

Mr Outram : Again, we will tell you on notice if it is available.

CHAIR: Even if it can be made available with the commercial parts of it redacted—that is, money, hourly rates and that sort of thing.

Mr Outram : I imagine that is achievable, and we would certainly welcome that opportunity because the contract does deal with training standards and outcomes we are trying to achieve. Some of them were mentioned earlier on today around the duty of care, human rights, cultural awareness and those sorts of things.

Senator LINES: I want to go to that. Thanks, Mr Outram.

CHAIR: Excuse me—are these the existing contracts, or the new ones?

Mr Outram : The existing contracts.

CHAIR: And they will remain?

Mr Outram : Yes.

Senator LINES: Page 8 of the department's submission talks about the training. I think it is the current—

Mr Outram : The current contract, yes.

Senator LINES: You say that authorised officers will meet minimum standards. Is this the new training, or what is this at 2.6 on page 7 of your submission intended to be? It is under 'training and qualifications'.

Mr Outram : The department's submission says 'The contract requires', current tense, 'a biennial rolling program'—

Senator LINES: Sorry, Mr Outram. I did not catch that.

Mr Outram : I am at the second paragraph down:

The … contract requires a biennial rolling program of refresher training to ensure staff maintain their qualifications in the use of reasonable force. In addition—

Senator LINES: Yes, I have read that. I am asking you about the first paragraph, because currently you do not have authorised officers, or do you?

Mr Outram : It does not say that. It says the contract 'requires a biennial rolling program of refresher training'.

Senator LINES: Mr Outram, I have asked you to look at the first paragraph about three times now. I have asked you: do you currently have authorised officers?

Mr Outram : Not in the sense that the bill envisages.

Senator LINES: On this training, section 2.6 says:

Authorised officers will meet minimum standards in training and qualification requirements.

Does this apply to the current bill?

Mr Outram : Yes, as I understand it.

Senator LINES: So the first paragraph applies to the current bill?

Mr Outram : That is right—'apply basic defensive techniques in a security risk situation—

Senator LINES: I have only asked you about the first paragraph.

Mr Outram : Yes, and I am answering your question.

Senator LINES: I certainly do not want to mislead you.

Mr Outram : It also says 'use basic lawful defensive techniques to protect the safety of the individual'. That is linked to, as you have said, security operations in a particular element, which is to protect—

Senator LINES: No. How about you let me ask the questions so that we do not—

Mr Outram : I am answering your question.

Senator LINES: No. I just asked you about the first paragraph.

CHAIR: Can you start the question again, please.

Senator LINES: We have established that the first paragraph under 2.6 applies to the current bill.

Mr Outram : Yes.

Senator LINES: Does the next paragraph where it says, 'The department currently—

Mr Outram : Are you talking about the first paragraph on page 7 or the first paragraph at the top of page 8?

Senator LINES: The one I read out, Mr Outram. It starts off saying, 'Authorised officers will meet minimum standards and training.'

Mr Outram : It says 'will meet'. It does not say 'do meet'. We do not have authorised officers, as I said to you, at this point in time.

Senator LINES: That is right.

Mr Outram : I said that.

Senator LINES: I think we have clarified that the first paragraph relates to the current bill.

Mr Outram : Yes.

Senator LINES: Thank you. The second paragraph seems to relate to what Serco is currently doing.

Mr Outram : Yes.

Senator LINES: Is that correct? Where it starts off stating, 'The department currently expects—

Mr Outram : In relation to the managers, yes.

Senator LINES: So currently the department requires that people who manage security hold a certificate IV?

Mr Outram : Managers from Serco—yes, that is right.

Senator LINES: What is a manager?

Mr Outram : It is a person in charge or a supervisor. I can tell you exactly what level that goes down to, but the managers are appointed positions.

Senator LINES: You can take on notice to tell us what level that goes down to. That is the current requirement. Then it says, 'For authorised officers'—and you have already told me that authorised officers do not currently exist. Does this paragraph relate to the current bill?

Mr Outram : I will have to clarify that. The way it is worded is ambiguous. I do not want to mislead you. I can probably quickly answer on notice whether that is in the current contract or not.

Senator LINES: No, I am not asking you that. We have established that authorised officers do not currently exist. We know they are mentioned in the bill before us. We have established the first paragraph applies to the current bill. The second paragraph applies to what is currently required of Serco or anyone who manages detention centres. The third paragraph goes back to 'authorised officers' and it relates to a certificate II. So the question I am asking you is: does paragraph 3 relate to the current bill?

Mr Outram : I do not believe so, but I want to look at the term 'authorised officer' and whether that achieves a different definition within the contract. That is what I want to check. But, on my read of this, this is the existing contract. It says 'requires that'. 'Requires' is present tense. They must hold something or obtain something within six months of commencement.

Senator LINES: So it is erroneously using the term 'authorised officers'?

Mr Outram : My advice is that this applies to current officers but not authorised officers. I want to go and check on that terminology. It seems to be ambiguous. I will clear that up for you.

Senator LINES: Thank you. I would appreciate that. Those two dot points relate to that paragraph, which is ambiguous. The last paragraph mentions a Certificate II in Security Operations and sets out the competencies. Is that related to the current contract?

Mr Outram : Yes.

Senator LINES: At this point in time, apart from that first paragraph that says, 'Authorised officers will meet minimum standards,' we do not know what that training is going to look like.

Mr Outram : The training in relation to the certificate?

Senator LINES: To these authorised officers that the minister is going to sign off on.

Mr Outram : If you go to page 8, the second paragraph on that page says—

Senator LINES: But they are just generalisations.

Mr Outram : No. It says, 'In addition—

Senator LINES: But that is what is currently required.

Mr Outram : But you just asked me about what is going to come down the track, didn't you?

Senator LINES: Where does it spell out the training for these authorised officers?

Mr Outram : It says:

In addition, all authorised officers will attend regular refresher training on the use of reasonable force in IDF, the curriculum of which includes:

legal responsibilities—

Senator LINES: Which paragraph are you reading from?

Mr Outram : I am reading from the second paragraph at the top of page 8.

CHAIR: We do not have page 8, so can you just go to 2.6. Which paragraph is it?

Mr Outram : Seven.

CHAIR: Okay.

Senator LINES: How does it start?

Mr Outram : It reads:

The IDSP contract requires a biennial rolling program of refresher training to ensure staff maintain their qualifications—

Senator LINES: But that is the current contract.

Mr Outram : The second sentence is:

In addition, all authorised officers will attend regular refresher training on the use of reasonable force—

Senator LINES: So you are saying that the first sentence in this paragraph refers to the current contract.

Mr Outram : On my reading of it, yes. It says 'the contract'.

Senator LINES: And the second sentence in the same paragraph refers to the bill.

Mr Outram : That is my reading of it, yes.

Senator LINES: How do you read that that applies to the bill and yet when we go back to the third paragraph of 2.6 it says that for authorised officers responsible for the general safety of detainees a certificate II is required. How do you say that that is ambiguous but this is not ambiguous?

Mr Outram : If it did not say authorised officers it would not be ambiguous in paragraph 3. What this is doing is identifying areas of training that are required over and above those minimum standards.

Senator LINES: How does 'in addition, all authorised officers will attend regular refresher training' not ambiguous when the first part of that paragraph applies to the current contract and that sentence applies to the bill?

Mr Outram : It says, 'the curriculum of which includes' which has a lot of additional things.

Senator LINES: So the current curriculum does not include any of that.

Mr Outram : It appears not. That is right. If you look at the descriptions of what the certificate II in security operations involves, it is covered in the bullet points:

apply basic defensive techniques in a security risk situation; and

use basic lawful defensive techniques to protect the safety of the individual and others.

Senator LINES: But this certificate II in security operations that we are talking about is the general licensed security officer that you would see standing outside a bank or in a building.

Mr Outram : I have no idea which other organisations use that standard, but it is a standard—Serco tried to adopt a national standard and, of course, there were certain standards available.

Senator LINES: You can take it from me, Mr Outram, that that is the general security officer mandated training. It is not specific to detention.

Mr Outram : Understood. So you can see there the additional areas of training that we have identified that we want these officers to undertake.

Senator LINES: How will these be developed?

Mr Outram : Through the contract, of course, and then we will have our border force officers, who are trained, experienced, law enforcement officers in the IDCs at superintendent level, who will be able to monitor and observe compliance with the contract.

Senator LINES: Who will develop the competency on legal responsibilities?

Mr Outram : We will do that with Serco. We will work with the service provider to do that.

Senator LINES: Will these be nationally recognised? Will these be certified by the training authorities?

Mr Outram : As far as they can be. In the corrections and law enforcement environments there is not always a national certificate in educational departments to cover everything. Some areas of policing and law enforcement are not covered. There may not be a national competency for legal responsibilities in a detention centre or for duty of care or human rights. But what this training will be delivered through is recognised training—people with training qualifications and organisations. As I understand it, Serco are a registered training organisation, as you said earlier on.

Senator LINES: What that enables them to do is deliver nationally accredited courses. It does not give them any training experience or skills to develop these courses.

Mr Outram : But the department and the Customs and Border Protection Service—what will be the Border Force—do and will have significant involvement in that development. We will establish a standard through the contract.

Senator LINES: Do you have accredited curriculum writers?

Mr Outram : We have people who are qualified in training. Whether we have accredited curriculum writers I would have to take on notice.

Senator LINES: Mr Outram, I am qualified in training; I am not qualified in writing curriculum.

Mr Outram : I would have to take that on notice. What we do have is people who are very experienced in training in relation to the use of force or enforcement activities.

Senator LINES: I am very experienced in delivering training. It does not mean I can write curriculum.

Mr Outram : Police organisations and corrective services departments train all their people—I talked about that earlier on—in duty of care, human rights.

Senator LINES: I think you need to take on notice: who is going to write these courses; who is going to deliver this course; and which elements of that course will be accredited.

Mr Outram : We will come back to you on that.

Senator LINES: You have already taken on notice whether or not the training requirements are going into the contract and you have taken on notice whether that is commercial-in-confidence. Would the superintendents you said you would have at each facility be at all of the facilities the proposed bill would cover—

Mr Outram : Yes.

Senator LINES: But not at community facilities?

Mr Outram : No.

Senator LINES: On what authority will they operate?

Mr Outram : They will be members of the Australian Border Force. They will be sworn members of the Border Force and—

Senator LINES: I accept that but we have a bill that authorises the use of force and does not mention your people.

Mr Outram : But even now the contract provider has to consult with the department before they use force in planned situations so that person would obviously be somebody who was consulted in that case. They are there on the ground. They are closer to the action. They have far better situational awareness than somebody back here in Canberra. They can observe the way that that operation is then put into effect. So, from my point of view and our point of view as an organisation, that is a far better form of control and governance on the ground than somebody sitting at arm's length in a different part of the country exercising that authority. That person will report in a command and control sense—

Senator LINES: I heard you say that. I am just trying to figure it out here. So we have a bill that does not mention these superintendents, does it?

Ms de Veau : No. It will apply to authorised officers and you would authorise everyone who has a need to exercise a power, whether they are a contractor or a Border Force—

Senator LINES: So these superintendents would be authorised?

Ms de Veau : You would authorise them and to be authorised they will need to meet the requirements of the bill.

Senator LINES: I am not sure that is something Mr Outram had thought of. We initially heard there was going to be superintendents—

Mr Outram : They are a superintendent. Given their role of quite senior leadership supervision, their day-to-day activity will not be exercising the use of force I would not think. Certainly in planned situations it would be unlikely that they would need to use force—

Senator LINES: I appreciate everything you are saying, Mr Outram, and I do not doubt the skills and capabilities of particular individuals who may take up these roles. I guess what I am not understanding is how the superintendents who are not covered off in the bill, unless they are authorised officers—

Mr Outram : They may well be authorised.

Senator LINES: So they will be now.

Mr Outram : We have not determined that. What we are doing here is building the model for this. The decision to put the superintendents in place has been taken. We are now designing the job and identifying the competencies of that position, and that is work that is in train as we speak. We will then go and find the people with the experience, skills and abilities. We will then put some training in place for them so that by 1 July they are ready to go and exercise that function—

Senator LINES: But you are also asking me, Mr Outram—

Mr Outram : Whether as part of that they need to be authorised or not, that decision has not yet been taken.

Senator LINES: But you are asking me, as a Labor senator, to vote on this bill and there are a whole lot of holes in it. It seems to me that what we are hearing from you this afternoon is adding things on the run. Now we have heard these superintendents may be authorised officers.

Mr Outram : You characterise it as 'on the run'. In fact, no, we are taking our responsibilities very seriously so that when Border Force stands up it is an organisation of which we are going to be proud. We are going to do the job professionally and competently.

Senator LINES: I am not questioning that. I am saying—

Mr Outram : But this has nothing—

Senator LINES: why now have we got this additional person—

CHAIR: Senator, you have asked the question. You have to allow the witness to finish.

Mr Outram : We do not need legislation to allow us to create a layer of leadership and a role description, and nor does any organisation. We will create our organisation the way we deem necessary in relation to our operational challenges.

Senator LINES: Sure.

Mr Outram : The legislation has nothing really to do with this. What we are doing is putting in place administrative, governance, supervisory and oversight mechanisms over and above what already exist in order to shore up—

Senator LINES: Trust me, Mr Outram, I heard you loud and clear on that. What I am trying to understand is how this new role of superintendent fits with this bill that allows authorised officers with some sort of training yet to be determined to carry out force. You have told me that they may be authorised officers. I do not doubt that they will do oversight et cetera but I can see little point in having a superintendent sitting in a detention centre who sees something that is not quite right and really has no power and authority to do anything about it.

Mr Outram : They have absolute power and authority.

Senator LINES: What can they do?

Mr Outram : Let me paint the picture about what the intent of this position is for you, whether or not the legislation goes through. The superintendent will be there present on the ground to firstly deal with and monitor Serco or the service provider in relation to their performance under the contract. If there is any sniff or allegation or information of any abuse of detainees or crimes committed in the centre, they will chase that down in terms of what happened. If there is a need to preserve evidence, they will make sure that happens. If there is a need to bring in the local police, they will make sure that happens. If there is a need to engage with other Commonwealth agencies, they will make sure that happens. They will also make sure that we in Canberra are absolutely situationally aware of what is going on on the ground. The bill aside, there is a clear role for these people in—

Senator LINES: Why? Because Serco is not doing their job?

Mr Outram : No, it is not that at all. It is because we take our responsibilities very seriously.

Senator LINES: Then why, if Serco have been paid millions of dollars to undertake detention, do we need this additional oversight? Now you are saying they are going to have a role to make sure nothing untoward is going on. Isn't that Serco's role?

Mr Outram : You could call it contract management on steroids. We recognise that this is a very complex, challenging and risky environment, and we are doing what we think is reasonably necessary to manage those risks. As an organisation we are taking our responsibilities very seriously and not trying to abrogate them through a contract.

Senator LINES: So you are saying that Serco is—

Mr Outram : No, I am not saying that. Serco are a very competent organisation. They run corrections facilities—

Senator LINES: Then why do they need this additional oversight?

Mr Outram : This is a partnership approach. We are not comfortable in this environment just to leave the service provider on their own hanging out there to dry in this environment. It is risky, as you have heard today from all the witnesses, and we have as well.

Senator LINES: Contractors have been hanging out to dry for 20-odd years.

Mr Outram : I cannot speak for the last 20-odd years. What I am saying is what we are going to do on 1 July.

Senator LINES: It is still not clear what the interface between the superintendent's role and this bill is.

Ms de Veau : Legally I do not see that there needs to be one. The bill is about whether a person can rely on the powers therein to exercise reasonable use of force. If they are an authorised officer, they are so entitled to do so.

Senator LINES: Will your Border Force, Mr Outram, have superintendents at Nauru and Manus?

Mr Outram : No.

Senator LINES: Only within the Australian context?

Mr Outram : Yes. Clearly there are jurisdictional issues in other countries.

Senator LINES: You will not have that jurisdiction? You will have no relationship with Transfield about how they run that contract?

Mr Outram : Border Force? Not directly with Transfield, no. The department will maintain a relationship with Transfield.

Senator LINES: Is that Mr Sommerville, or your department?

Mr Sommerville : In the construct of the Border Force, the role I am in will evolve into something that only deals with the onshore detention network.

Senator LINES: Is the department going to deal with Nauru and Manus?

Mr Sommerville : Yes.

Senator LINES: Did the department ask Transfield to stand those guards down?

Mr Sommerville : Sorry?

Senator LINES: The Wilson Security officers who have been stood down. Did the department ask, through Transfield to Wilson Security, for those officers to be stood down?

Mr Outram : We will have to take that on notice. We can talk about this bill in relation to the domestic situation—

Senator LINES: I am sorry, Mr Outram, I did not think you had responsibility for Manus and Nauru, which is why I am asking Mr Sommerville.

Mr Sommerville : I will have to take that one on notice.

Senator LINES: So you do not know?

Mr Sommerville : No. I do not know, so I will have to find out. I will have to take it on notice.

Senator LINES: How will Manus and Nauru be managed?

Mr Sommerville : They will be managed through another part of the department in terms of a similar supporting arrangement to now where the department provides support to the operations of the sovereign nations. There will be a support branch in Canberra, and there will be on-ground support in both facilities.

Senator LINES: Mr Outram, are you familiar with the incident where the guards were stood down? I have a media release I can table.

Mr Outram : I am not, no.

Senator LINES: Eight Wilson Security officers were stood down because they made racist comments. They posted Islamophobic messages on Facebook. They used derogatory terms and so on. In the role of your superintendent, will you be looking at how Serco, or the contractor, whoever that might be, employ staff? I mean that report is pretty damning.

Mr Outram : If there is a systemic issue identified, we will do that through our centralised contract management. These are operational people, so, in terms of each detention centre, they will be observing how things go on the ground. If we identify—

Senator LINES: Well, there is a systemic problem there that has somehow missed the boat.

Mr Outram : There is, but I cannot comment on the Nauru situation. You asked me a question about the superintendents. They will be responsible for the detention centre they are working at.

Senator LINES: How will you identify if there are systemic issues such as those identified on Nauru?

Mr Outram : Because we will have reporting coming in from each of the centres, from the superintendents, so we will have an aggregate view of what is going on on the ground. We also—

Senator LINES: But they are not looking at employment, how Serco employs. How will they make that assessment?

Mr Outram : If people's behaviour is generally and systematically poor—all the things we have heard about today, whether there is systemic racism, systemic abuse or systemic violence—we will get to hear about that. Certainly, through having superintendents on the ground, we will get to hear about it more quickly.

Senator LINES: Would you then ask the contractor to stand those contractors down?

Mr Outram : Do we?

Senator LINES: Would you?

Mr Outram : In certain circumstances, absolutely, but, if it were a criminal offence, we would probably go that route first.

Senator LINES: But if there were that kind of macho, racist, Islamophobic behaviour going on?

Mr Outram : We would not tolerate racist, Islamophobic behaviour.

Senator LINES: So would you ask the contractor to stand those officers down?

Mr Outram : If the circumstances demanded it, yes, we would, absolutely.

Mr Sommerville : If I can just clarify slightly: as I understand it, we can tell Serco that person cannot work in a facility again. So it is effectively the same outcome.

Senator LINES: Thank you. That is heartening to hear.

Mr Sommerville : It is worth mentioning, if I may: Serco has code of conduct, which is underpinned in the contract, which its staff must adhere to. It can use that in terms of any breaches in terms of its employment arrangements with that staff member, as well as any other penalties.

Senator LINES: Okay. Are any of you aware that Serco is currently about to finalise its enterprise bargaining agreement?

Mr Sommerville : I understand that they are in current negotiations with their staff, yes.

Senator LINES: So the new agreement does not have any provision for additional pay for authorised officers?

Mr Sommerville : I would have to take that one on notice. We are not party to their pay arrangements.

Senator LINES: I get that you are not party, but we are now expecting Serco officers to do this enhanced security work for $25, $26 an hour or whatever their current hourly rate is. Is that correct?

Mr Sommerville : As I said, the honest answer is that we can take that on notice for you and see what we can find out from Serco.

Senator LINES: Thank you. I do not think I have any further questions. Thank you for the indulgence, Senator Macdonald.

Mr Outram : Senator, I might just come back to you in relation to Nauru and Manus Island and where functionally that will sit in the new arrangements from 1 July. It will not sit within my area within Border Force but it may sit within a different area in Border Force—and of course we are part of the department from 1 July. I will clarify that for you.

CHAIR: I am sure you said you would do this, Mr Outram, but can I get you to review the submission that Senator Lines was talking to you about—about 2.6 or 2.7, the authorised officers. I suspect you did not draft the submission, and it might be appropriate just to review that and make sure that we have got it on track. Just before we finish, is there anything that you might have heard in other evidence, given before, that factually—not matters of argument or debate—anyone wanted to clarify?

Ms de Veau : Just two matters if I might. There was some useful dialogue this morning around the test that has been articulated for the use of force in 197BA(1). It is important to understand that it is not entirely subjective and, like many of these tests—and they vary from act to act—they generally balance an objective component and a subjective component. So the drafting that has found its way into 197BA(1) has the 'reasonable force' up-front. That is an objective standard. That has to then be matched with a belief by the officer—it has to be a reasonable belief—as to necessity. So a belief that is reasonable is also an objective and subjective test. There were some comments made this morning that that was out of kilter with all of the other comparable legislation. Can I just indicate that there are actually a variety of ways that that has been expressed, particularly as to whether the necessary component is front-ended so that it is only objective. While some examples of that form of drafting were given, there are two that are consistent with the way that we have drafted it. The Western Australian Prisons Act provides for such force as is believed on reasonable grounds to be necessary. That is fairly consistent with what we have drafted. Equally, the Victorian Police use such force that is not disproportionate as believed on reasonable grounds to be necessary. So, again, that is a fairly similar form of drafting.

Again, when it comes to what is excessive, the bill does not in any way authorise excessive force, because excessive force would not be reasonable. What is reasonable is a fairly standard approach for the courts when they consider that. It is well accepted jurisprudence, and reasonableness is looked at objectively and in the specific circumstances. What is reasonable in one circumstance might not be reasonable in another, so it is seen through that lens. The other thing I want to mention—

Senator LINES: Before we move off that, in relation to WA prison officers, and I think you said South Australian prison officers—

Ms de Veau : Victorian Police.

Senator LINES: I beg your pardon. That use sits within a regulated context of other sorts of—I am sure 'punishments' is not the right word. For example, jails can be locked down, prisoners can be segregated, they can be fined within the centre and so on. There is a whole management regime of punitive measures which can be enforced. It is within a prison. You are taking a prison environment and comparing it to a detention centre, where significant numbers of people in that detention centre have committed no crime.

Ms de Veau : That is why I think Mr Outram said earlier that we are fairly unique when it comes to looking at a legislative model to try and compare it to.

Senator LINES: Yes, and I used that word myself this morning.

Ms de Veau : I simply did not want it left unsaid that we were the only outlier when it came to the way it was drafted.

Senator LINES: No, other people raised that point and it is not comparing apples with apples. A prison and a police force are not the same as a detention centre. I used the word 'unique' myself this morning in describing this.

Ms de Veau : The other matter I want to mention is that reference was made to the Attorney-General's guideline that is around the drafting of these sorts of provisions. The Attorney-General's Department were consulted in relation to the way this bill was drafted and specific reference was made to the guidelines in that consultation with them.

CHAIR: The committee has set 27 April for answers to questions taken on notice to be returned—if that is possible. If you are having trouble, please ask us for a short extension. With that, thank you very much for your help today and for the advice given. We look forward to getting your answers and, no doubt, seeing you again at some time in the future.

Committee adjourned at 16:23