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Legal and Constitutional Affairs Legislation Committee

APPLEBY, Dr Gabrielle, Associate Professor, Gilbert and Tobin Centre of Public Law, and Andrew and Renata Kaldor Centre for International Refugee Law

CHARLES, the Hon. Stephen, QC, Private capacity

DUNN, Mr Matthew, Director of Policy, Law Council of Australia

HAMMERTON, Ms Claire, ALHR National Committee Member and Refugee Sub-Committee Coordinator, Australian Lawyers for Human Rights

KNACKSTREDT, Miss Nicola, Policy Lawyer, Human Rights, Law Council of Australia

[12: 10 ]

CHAIR: In respect of Mr Dunn, welcome back!

Mr Dunn : Thank you, Chair.

CHAIR: Welcome to all the other witnesses who have kindly agreed to help the committee with some submissions and some answers to questions. We do have submissions from all of you, which we have numbered submission 30, 8, 15 and 24 respectively. That is our numbering and means nothing more than that. For those of you who have not appeared before Senate committees before, these are proceedings of the federal parliament and therefore parliamentary privilege applies. It is an offence for anyone to threaten or in any way prejudice you by reason of any of the evidence you give to the committee. If there are things that you want to say in confidence, you should raise that with the committee and we can go into in camera, in certain circumstances.

You may have been aware that these proceedings are being telecast also by APEC, which has nothing to do with the committee but the committee has agreed to allow that to happen. We do always inquire if any of the witnesses has a particular objection to that happening and, if they do, they should raise that and we will address that. There is no response so I take it that everyone is happy enough.

We will go through each one of you individually to see if you have a short statement to assist the committee. We do have your written submissions. If there is anything you want to change or alter in your submission, that can be done now. As a former lawyer myself, I always pay respect to those of Queen's Counsel, so I might start with you, Mr Charles, and go along the table.

Mr Charles : Thank you for giving us the opportunity of addressing you this morning. I am a retired judge of the Victorian Court of Appeal. I want to address some legal points, trying to view it from the viewpoint of the way a court might approach this. One has to bear in mind at the outset that these amendments to the Migration Act will, in effect, result in guards being authorised to beat asylum seekers in detention to death, on the basis that they reasonably believe it is necessary—for some reason—to do so.

The first of the major defects in the legislation seem, to me, to be that the authorisation to use reasonable force and to do something likely to cause grievous bodily harm is completely inappropriately provided for. The second is the training and qualification of the guards and the third is the bar on legal proceedings. I am sure there are others in the very admirable submissions that I have been reading.

So far as the first is concerned, senators will recall that in America recently a police officer, Michael Slager, was charged with murder after shooting an African-American in the back, eight times, as he was running away from Slager. This is a problem which not infrequently arises in southern states with white policemen dealing with Afro-Americans. The question of reasonable necessity repeatedly does arise in America.

I have with me a judgement of the Supreme Court case of Graham v. Connor in which in 1989 the Supreme Court dealt with the question of reasonable necessity and demonstrated how difficult it is in that sort of case to obtain a conviction for murder. I have a commentary on the Slager matter by Dr Tom Nolan, who is a former senior policy analyst in the Department of Home Security, is a 27-year veteran of the Boston Police Department and now heads a criminology department in the Merrimack University. He says that, having regard to the way these questions of reasonable necessity are considered by the Supreme Court, there is no real likelihood of Slager being convicted of murder. It is as difficult as that where reasonable necessity is concerned. Having read the judgement of the US Supreme Court, I think it is highly likely that our High Court would take exactly the same view. I will make these documents—

CHAIR: Say that again. How is Mr Slager going to get off?

Mr Charles : Mr Slager will get off, according to Dr Nolan, because the very nature of so-called reasonableness is inherently subjective and easy fodder for defence counsel. Slager's attorneys will portray him as a courageous, selfless, dedicated, heroic police officer who unflinchingly faced danger on a daily basis and one who may have made a mistake but a flawed human like the rest of us is certainly no murderer full of malice. He predicts—

CHAIR: Are you saying that an Australian High Court would accept that someone who shot a fleeing person seven times in the back—

Mr Charles : The test is what is concerned and how difficult it is in these circumstances to obtain a conviction of someone where reasonable necessity is concerned. Time and again in the United States courts police have been acquitted on a test of this kind.

CHAIR: I have never had much regard for United States law, I must say. That is my personal opinion.

Mr Charles : The High Court does.

CHAIR: Really?

Mr Charles : Yes.

CHAIR: I find that extraordinary.

Mr Charles : That is the first matter. I am sorry that I have only one copy.

CHAIR: That is okay. We can copy that. Thank you.

Mr Charles : I also have with me on the second point the training and qualification of the guards. There is very little in the way of limits or controls placed on the guards as to how and when they may use force. Guards are not genteel and civilised Public Service clerks but under the amendment it is going to be the minister who is to determine the training and qualifications. From the department's submission the training appears to be minimal, far less than is required for police or warders. One reading of paragraph 2.6 of their submission suggests that no training at all is required so long as it is in the first six months of their employment by the person in question.

I have with me three documents that emerged in the press in the last three days that relate to behaviour. Guards at Maribyrnong detention centre are being vigorously accused of really offensive behaviour to detainees. I have another of a Manus Island guard who stood down after some extremely offensive posts. Reclaim Australia and anti-Halal views were being stated by him.

I have a third which is of detention centre guards in Nauru. I am sorry that my printer did not include the pictures of the guards in a group around Ms Pauline Hanson. In so far as the possibility of actions by outlawed bikie gangs is concerned, one would have thought, from looking at the guards surrounding Ms Hanson, that it is far more likely that you will find people of that kind among the guards than among the detainees. These people are heavily muscled with very offensive slogans on their T-shirts. They are indicating in every sense an extremely hostile attitude towards asylum seekers.

CHAIR: When does that date from?

Mr Charles : Within the last three days.

CHAIR: It was published in the last three days?

Mr Charles : These were, yes.

CHAIR: But when did the incident of these—

Mr Charles : The incident? It says that eight guards of the emergency response team at Nauru have been stood down. The report is in The Guardian of the 15th. That is yesterday. It is accompanied by these very colourful pictures of the guards—

CHAIR: But when was the photo taken?

Mr Charles : I am sorry. I am not able to tell you.

Senator LINES: If it is helpful, I have indicated to the secretary that that is a document I wanted to table. I have given it to the secretary. I am not sure if we have copies of that.

Mr Charles : They are colourful.

CHAIR: It is a photo of a group of people.

Senator HANSON-YOUNG: It is from two weeks ago.

CHAIR: Keep going, Mr Charles.

Mr Charles : The last point I wanted to make is that the ban, the effective ban, on legal proceedings is, in my submission, unnecessary and will inevitably encourage violence by guards towards asylum seekers. I would submit it is wholly inappropriate to prevent them from being able to bring proceedings. The suggestion is that it is only in bad faith that these proceedings may be brought. I support entirely what Professor Triggs said before about the great difficulty of establishing bad faith. The point of it, no doubt, was to ensure as far as possible that the Commonwealth would never be liable to asylum seekers for anything they might suffer. It effectively prevents these things being brought. There are other things I could say, but I do not want to take up people's time.

CHAIR: Okay. Thank you. Ms Hammerton, do you wish to say something?

Ms Hammerton : Yes.

CHAIR: Please go ahead.

Ms Hammerton : I would like to make a brief opening statement. Thank you for allowing Australian Lawyers for Human Rights the opportunity to appear today. I would like to start by reiterating ALHR's strong opposition to this bill in its current form, and that, as it currently stands, we reject the bill in its entirety. We recommend that it be rejected.

In essence this bill gives private security officers the power to use force against people in immigration detention facilities that is greater than the force allowed under analogous state and territory prison legislation. According to the explanatory memorandum, the bill is directed towards managing high-risk detainees such as those who have been convicted of criminal offences. However, the reality, of course, is that the majority of people held in immigration detention facilities have not been convicted or charged with any crime. According to the latest statistics of the Department of Immigration and Border Protection, there are currently 124 children in immigration detention facilities in Australia. If enacted, the provisions of this bill are highly likely to encroach on a number of fundamental human rights including the right to life, the right to peaceful assembly, the right to humane treatment in detention, the right to an effective remedy, and the prohibition against torture and other forms of cruel, inhuman or degrading treatment or punishment. I would like to make five brief but key points regarding ALHR's concerns about this bill.

First, there is no reasonable justification for introducing legislation that widens the scope to use force. Currently under the common law, as has already been discussed today, private security officers may use force when the use of that force is objectively necessary. The case, in our view, has not been made out as to why the common law position is inadequate and why it is necessary to change the test from the common law objective standard to one where the use of force is judged by the officer's own subjective assessment as to whether it was reasonable.

Secondly, crucial terms in the bill are left undefined. It does not provide the clarity that Serco has asked for. The terms 'good order', 'peace' and 'security' are not defined, which leaves room for these terms to be interpreted very widely—for example, one can imagine a peaceful protest by detainees in detention facilities that might be considered by private security officers to be a disturbance against good order, which may then lead these officers to believe that the use of force was justified in those circumstances.

Thirdly, there are important principles that help prevent breaches of fundamental human rights that are not enshrined in this bill—for example, the explanatory memorandum explains that the Department of Immigration and Border Protection's policies and procedures include the principle that force should only be used as a measure of last resort and for the shortest amount of time possible. However, these kinds of principles are not enshrined in any provisions of the bill, which means there are simply insufficient safeguards. Policy, in our view, is not a sufficient safeguard.

The fourth point is that this bill allows the use of force against 'any person or thing' and does not make a distinction between adults and children. Children in immigration detention facilities are obviously extremely vulnerable and, in accordance with Australia's obligations under the UN Convention on the Rights of the Child, they require our special care and protection. In failing to address the special needs of children, this bill, if enacted, will potentially expose and subject children to serious harm.

As has already been pointed out, the bill does not make provision for independent oversight of the use of force, and it denies, in large part, the right to seek legal redress. The complaints process that the bill sets up is essentially limited to the very broad discretion of the Secretary of the Department of Immigration and Border Protection. In our view, any complaints process should be conducted by an independent body—not the secretary of the department. In addition, the secretary's decision not to investigate a complaint is, on our reading of the bill, not reviewable. We would say that is contrary to the right to an effective remedy under article 2 of the ICCPR.

Finally, the bill effectively provides for a bar on legal proceedings where the power to use force was exercised in good faith. In ALHR's view, it is critical to the respect for the rule of law in this country that there is judicial scrutiny of powers that have such enormous potential to encroach on basic human rights.

CHAIR: Thank you very much. Dr Appleby, I invite you to make some opening remarks.

Dr Appleby : Thank you, and I thank the committee for the invitation to speak to our submission today. I am an associate professor at UNSW Law and the co-director of the judiciary project at the Gilbert and Tobin Centre of Public Law. The submission that was put to the committee was prepared by the Gilbert and Tobin Centre together with Professor Jane McAdam, the director of the Kaldor Centre for International Refugee Law; and Dr Claire Higgins, a research associate with that centre.

In my opening statement I intend to highlight two key points from the submission rather than taking you through the detail of it. As a preliminary point, I would like to register my concern about a trend that I have witnessed in the government's approach to immigration and specifically in relation to asylum seekers, and that is exempting officers who are responsible for the care of asylum seekers arriving from the ordinary requirements of the law. In 2014, for example, we saw the Commonwealth exempt Defence Force personnel involved in boat turnbacks, as part of Operation Sovereign Borders, from the requirements of the Workplace Health and Safety Act. This bill represents an attempt to exempt authorised officers working at immigration detention facilities from the ordinary requirements of the law when using force against other human beings, including vulnerable individuals such as asylum seekers and children.

I will speak briefly on two points that come out of the submission. The first is the extraordinary nature of the powers and the protections given to those powers. The second is the accountability difficulties associated with conferring such powers on officers who are under contract with the Commonwealth. It has already been emphasised in the hearings today, but we would like to emphasise again that these powers and the protections provided to the officers who use them are extraordinary. Any powers authorising the use of force raise concerns about whether the intrusion into the human rights of those against whom force is used—including the right to life, the protection against torture and inhuman or degrading treatment or punishment—is justified and proportionate. The ill-defined and broad nature of the powers in this bill make these concerns particularly acute. Further, they are exercised not by qualified police officers but by government contractors. The explanatory memorandum claims that the bill brings the powers of these officers into line with the powers of other officers in detention facilities. This is not correct; these powers go further. They pre-condition use of force on whether the authorised officer subjectively believes it is necessary. They authorise the use of force to maintain good order in an immigration facility rather than limiting it to where it is required to protect life, health, safety and security. And they have no statutory, public and enforceable safeguards in place to ensure, for example, that the force is used as a last resort.

There is no justification in immigration detention where officers are contractors and individuals are not being punished for any crimes they have committed to confer such extraordinary power to use force. Nor is there any justification for giving authorised officers in this context such strong protections against liability as we see proposed in clause 197BF in the bill. Again, there is no justification for such an unusual protection provision in the context of immigration detention. Other statutes conferring power to use reasonable force provide for personal protections or indemnities for the officers but not the complete immunity we see in this bill.

I will turn now to the second point I would like to briefly make, and that is that the individuals authorised under this bill are not Commonwealth officers. They will be contractors. This raises two main concerns. It is imperative that authorised officers are properly qualified and trained in the use of force. This is particularly important given the extraordinary breadth of these powers. We would hope that this includes ongoing training and monitoring. We are concerned about two points. First, we are concerned that the determination by the minister about what relevant training and qualifications are required is not a disallowable instrument. This means that it is not subject to parliamentary scrutiny. We are also concerned about the relationship between the determination and the contract with service providers and whether the contractual obligations will be able to reflect any changes made in the ministerial determination.

Finally, we will highlight that the law is not yet clear about whether contractors are subject to the guarantee of judicial review as provided in the Commonwealth Constitution which must be retained in this bill. The High Court has not yet decided on this question, and it may very well may be that the provision allowing for review under 75(v) of the Constitution has no application to the officers who are authorised by this bill to use force.

Mr Dunn : Thank you for the opportunity to appear before the committee today. I am the director of policy at the Law Council of Australia. We are the peak national body representing the legal profession of Australia. The bill is of great interest to the legal profession, as you have heard from my colleagues on the bench today, particularly those with experience in migration law, law enforcement and human rights. Some of the Law Council's constituent bodies, the Law Institute of Victoria and the Law Society of New South Wales, contributed to our submission.

As noted in the explanatory memorandum, the bill aims to address issues arising from incidents in a number of immigration detention facilities which have highlighted uncertainty about if and when immigration detention service providers may act when confronted with public order disturbances. The Law Council has supported clarifying the use of force in immigration detention facilities and sees merit in clarifying the use of force in those circumstances. However, the Law Council has opposed and has suggested there are preferable alternatives to the approach taken. To clarify the issue of necessity that we raised, we have proposed that the certainty that the bill tries to achieve could be reached other than by this piece of legislation by adopting certain strategies, including separating higher risk detainees and other types of activities.

But, leaving that to one side, the other and probably more important reason that we oppose the bill is the inadequacy of the safeguards. For this reason, as currently drafted, the bill is, in our view, not just and proportionate in meeting its objectives. Greater protection against abuse of the use of force is required in order to achieve the bill being proportionate, in our view.

The most concerning features of the bill that we see are: the broad scope of the circumstances which would justify the use of force; the lack of legislative clarity concerning the limits of that proposed use of force, including the use of the subjective belief that we have heard about today—that appears to go further than in other legislation of this kind; the bar of proceeding against the Commonwealth and its officers and agents except in limited circumstances; and the types of monitoring and investigation of the use of force under the new complaints system. While there is a bar on proceeding against the Commonwealth, we also note that there is no remedy made available as a result of the complaints process.

Further, as is set out in our written submission, the Law Council considers that access to independent legal advice is a fundamental requirement for the rule of law. Sanctioning reasonable force may inevitably lead to the use of force and, therefore, to the greater need for detainees to seek advice to be able to question and challenge unreasonable use of force made in bad faith. There is a need, in our view, for improved access to legal assistance, including facilitating contact with a lawyer where requested, ensuring detainees are aware that they can contact a lawyer and providing information to detainees in their own language where required.

Law Council has suggested a number of changes to the bill to better align it with international domestic law, key rule-of-law principles and procedural fairness guarantees. As noted in its submission, the Law Council's general view of the relevant standards that should be applied in immigration detention facilities is set out in the Law Council's asylum seeker policy and its principles applying to detention of asylum seekers. Thank you, very much.

CHAIR: We have approximately 25 minutes, which we will try and share between us. Mr Dunn—I think it was you—you said the new set your complaints mechanism provides no penalty—

Senator LINES: Remedy.

CHAIR: or remedy, but as I understand it the bill allows a complainant to proceed with any other actions they might ordinarily have had—that is, to the police service, or the Ombudsman or, I assume, to other authorities, which would provide a penalty. Is that your understanding?

Mr Dunn : Yes, I would expect, in the circumstances. The issue is that if the secretary finds that the complaint is upheld and feels that there is an issue that should be taken or that there should be some action taken as a result of the complaint, it is a little uncertain from the terms of the complaints process set out in the bill as to what can then be done or what the complainant can expect should be done in the circumstances.

CHAIR: Could not the complainant then refer it to the police, to the Ombudsman or to whatever other avenues would normally be available?

Mr Dunn : Indeed, but then what is the point of the complaints mechanism to the secretary.

CHAIR: It is to provide an accountability, I would assume. I am not the drafter of the bill, but it is to say to those who are in the detention centres: 'Look, there is this simple procedure which you will get assistance to do, so don't do the wrong thing or you will be immediately sprung.' I assume that that is the case. I can ask the department that.

Dr Appleby, you mentioned that the training arrangements are not a disallowable instrument. If they were a disallowable instrument, how would that take us further? All it would mean is that parliament could disallow that schedule and we would then be left with nothing until another thing comes forward.

Dr Appleby : It would allow for greater scrutiny in the parliament. The Senate Standing Committee on Regulations and Ordinances would be able to liaise with the government and obtain greater information about the standards—for example, whether certificate IV is adequate or whether there need to be additional standards. I think that type of dialogue between the parliament and the minister in making a determination is very important, given the importance of having adequate training and qualifications.

CHAIR: Can you foresee any reason why the department would not be trying to have a training schedule that is the best you can get? Is there a reason why the department would not be taking notice of the experts in training to indicate what needs to be done?

Dr Appleby : I do not think our submission is implying that that would be the case, but that does not mean that there should not be adequate scrutiny and accountability of a determination that has such important consequences. I think they are different issues. Whether there is a reason to be motivated by bad faith in making a determination and whether you should have adequate safeguards are things that may be overlooked, for example.

Senator HANSON-YOUNG: Just quickly, Mr Charles, you were pretty blunt in your opening statement. You said that this would, effectively, encourage violence.

Mr Charles : Yes.

Senator HANSON-YOUNG: Is there an argument for being very specific in this legislation to say that lethal force is not allowed to be used?

Mr Charles : It is difficult to say that, because in very rare circumstances lethal force might need to be used. The point I was trying to make is that there are really no limits set out in this legislation as to the circumstances in which it can be used. The fact that there is no effective means of taking proceedings against the Commonwealth or the officers concerned is what I was specifically referring to as something which was likely to encourage them to be more abusive and attacking against detainees.

Senator HANSON-YOUNG: The internal culture of how a detention centre would be run on a daily basis.

Mr Charles : Yes. Everything that one is reading any newspapers suggests that the internal culture is explosive and most unpleasant.

Senator HANSON-YOUNG: As it already is.

Mr Charles : Yes.

Senator HANSON-YOUNG: In relation to the issue of training—anyone on the panel can answer this—it strikes me as being a very dangerous situation that, whether the standards are disallowable by the parliament or not, it is clear that the government is saying that it wants the minimum requirements to be a certificate IV or certificate II, depending on where you are. Those qualifications are less than a nightclub bouncer is required to have in the state of Queensland. It is the minimum for New South Wales and Victoria but less than what is required of a nightclub bouncer in Queensland. How do we encourage the government to be far clearer with training requirements? To me it is a recipe for disaster if we do not have safeguards, as you say, Dr Appleby, that are at least legislated in a form that says, 'You're going to have these powers. You need at least to be fit to use them.' My question is, how do we encourage the government to reconsider this?

Dr Appleby : One of the reasons that, in our submission, we have put forward that the determination about what qualifications and training is required should be a disallowable instrument is that there must be a determination in place for there to be authorised officers to use force. That gives the parliament—and one house of parliament can disallow instruments, as you know—the ability to say, 'No, that is not good enough. We want stronger qualifications.'

Senator HANSON-YOUNG: So that process would allow for that debate to happen: a simple amendment to make that requirement of the qualifications disallowable?

Dr Appleby : That is right. If it is not up to the standards that either house of parliament thinks is necessary to use force—we would hope that the force would be more circumscribed than is currently in the bill: as it currently is it is extraordinary force—then if there is no determination in place, as I said, there can be no authorised officers, because an authorised officer must have the qualifications and training as set out in the determination.

Senator HANSON-YOUNG: The government has argued that one of the reasons they need to bring this forward is that the current contractors asked for clarification about what they could or could not do in detention centres, about what their officers would be expected to do or not do. Do you agree with the Human Rights Commission's evidence earlier that in fact this legislation does not give clarity but perhaps complicates it even further?

Miss Knackstredt : The Law Council's submission is that the legislation requires further clarity on the use of force and on those limits. The Australian Human Rights Commission's evidence was referring to Serco, which requested further clarity around the use of force. Serco did not request an increased use of force but further clarity. We would support that in legislation, but not in the form that it currently appears in the bill and certainly not without legislative safeguards in place like, for example, increased training and a bar on reference to death, as per our submission.

Mr Charles : Could I add briefly that the present provisions in the amendment relating to training are completely unrealistic. What they offer is something which is a mere veneer of training for these officers. When you read the submissions of the department and you see that they are talking, on page 8, about what the training of the guards is going to require—the people we saw in the pictures, surrounding Ms Hanson, are going to be told to be fully cognisant of duty of care and human rights, cultural awareness, occupational health and safety? This is a joke in extremely bad taste.

CHAIR: Sorry; can you explain that?

Mr Charles : This joke of what these people are all going to be aware of. The people we have seen with muscles bulging out of their T-shirts—

CHAIR: But they have been suspended.

Mr Charles : Yes, and—

Senator HANSON-YOUNG: They have been caught.

Mr Charles : Exactly.

CHAIR: This is training for the future. Hopefully, if that training had been in place in the past, these people might not have—I am not one who simply condemns people by association, because of whom they happen to be associating with. Even Ms Hanson is entitled to her views, no matter how much we would disagree with them, but this is for the future. It did not happen then. Hopefully this legislation will prevent any wrongdoing there. I hasten to add, as I say, association or exercising freedom of expression is not that, but hopefully that would not happen in the future.

Mr Charles : I could not agree more, but the impression one gets from reading these newspaper reports is that numbers of these guards come from England and numbers in Australia come from former servicemen in Afghanistan.

CHAIR: Hang on. This is legislation that is not yet in play.

Mr Charles : I entirely understand.

CHAIR: And you are calling the determination of the department to fix it a joke.

Mr Charles : I am saying simply this: that what they are proposing—no doubt it is quite difficult to get people to act as guards into detention centres; it must be an extremely unpleasant duty to have to fulfil, and they seem so far to be coming from retired servicemen and people of that kind.

CHAIR: Yes, but this is new legislation which, hopefully, will address the concerns you are raising.

Mr Charles : It is a hope and, may I say, hopefully, a pious one. We would all like it to happen, but is nothing more than a hope. The sort of training that they are talking about, as has been said before by Senator Lines, is fairly minimal in its standards.

CHAIR: This is new legislation that we are dealing with.

Senator HANSON-YOUNG: Actually this is a minimum that is already in the contracts—to be clear.

CHAIR: Is there some suggestion you are making as to how that provision could be enhanced so it is not, to quote you, a joke.

Mr Charles : There are all sorts of ways in which this could be enhanced, by requiring much higher standards of guards and also giving them less powers. If they are going to be people of the type you who have been mouthing the sorts of comments about asylum seekers we have seen, they ought not to be given these powers at all.

CHAIR: The powers bit—I can understand your submission on that. But the training so we do not get those what you consider to be bad types of people—is there some way the legislation could correct that?

Mr Charles : It could be specific about the standards of people and the standards of training that they have to get. But equally the people who have come into these positions must have done so on a fairly short-term basis, because it does seem that there is a high turnover of people coming in. Where do you find, rapidly, a large number of guards of the right qualifications?

CHAIR: So what is the solution? Give us the solution.

Mr Charles : All I am saying is that what we have seen so far has not given us very much reason to hope for the future. The other thing, of course, would be to improve conditions in detention centres and spend a bit more money on the detention centres, rather than the rather more luxurious places that the guards are housed in.

CHAIR: Well, that is a view. I note that in the minister's second reading speech he says:

The preparation for the passage of this bill includes the introduction of risk mitigation measures and governance controls. These measures will be in place and ready for the implementation of this legislation.

I cannot recall if the legislation actually says that, but that is the minister's intention in his second reading speech. Are you familiar with that, or can you help me? Does the bill provide for risk mitigation measures and governance controls?

Mr Charles : What I have seen suggests that there is not very much at all in the way of governance controls, and the absence of any real ability to take action against the officers who misbehave is, I fear, going to be a considerable encouragement to violence on their part.

CHAIR: You have raised with us a newspaper report that says that those who in your view have been inappropriate have already been sacked.

Mr Charles : Yes, but—

CHAIR: That is even before the bill has passed.

Mr Charles : as Senator Hanson-Young said, they are the ones that got caught, which is the usual situation with people in jail.

Dr Appleby : If I could just clarify in relation to your question about risk mitigation strategies and policies, I would take you back to the evidence that was given by Professor Triggs, that one of the issues with this bill is that so much is left for policy and to be contained in the contract, as opposed to being contained in the statute, where it is publicly available, where it is enforceable. This is one of the concerns. What we are seeing in the second reading speech is a reference to the policy but not to what is contained in the statute. I think we are unanimous in our submissions that those types of safeguards need to be in the statute itself.

CHAIR: Whether it is a comfort or not, this committee meets every two or three months and investigates all these sorts of things. So you can be assured that, if there is a flaw in the training manual, it will be raised publicly and come to the public attention. Thank you, Doctor. Mr Dunn?

Mr Dunn : To follow on from that excellent point, especially with respect to the threshold levels of an objective test for reasonable force and the elements that should comprise reasonable force, which are currently in the policy of the department, I would like to point out that that is the current policy of the department and could well change in the future, necessarily. Hence another good reason for that to be in the legislation itself. That also brings further certainty to the operator, because they know the level they have to comply with. It does not necessarily mean it will change at some point.

CHAIR: That is a fair point. One would hope that the flexibility would allow the standards to increase if they were found not to be appropriate, but the point about requiring certainty is a valid one, obviously—not that I have a view on these things. I am only here to listen.

Senator LINES: Dr Appleby, I think you referred to the fact that we do not have a disallowable instrument in terms of what the training might encompass, so we do not have parliamentary oversight and scrutiny. I think you perhaps referred to those requirements going into the contractual arrangements. But wouldn't that document be commercial-in-confidence between the department and the successful contractor and not available for scrutiny in any event?

Dr Appleby : This is the second part of our concern. It is one thing for the bill to require the minister to make a determination about the qualifications and training but, if that changes and the standards increase, how is that going to be reflected in the contract? The relationship between the contract and the determination is not mentioned in the bill and there is no clarity about how that would be engaged in relation to commercial-in-confidence, as you raised. These are concerns that we have and there is no clarification given in the current legislation.

Senator LINES: When Professor Triggs was giving evidence, I asked her if there were international standards in relation to training, because I pointed out that in my experience what is being contemplated by the department is the training that is available for security officers, not security officers who work in detention. She indicated there were. So, if the bill or indeed regulations referred to some international standards, do you have a view, any of you, about who should deliver that training?

I make the point because I note in the department's submission that the current contractor is a registered training organisation and is currently delivering the certificate II training. I think they have a two-day induction. I stand to be corrected on that, but my understanding is that you do their two-day induction and you get your certificate II. Indeed, they could provide all the training. What is your view about that?

Mr Charles : The Federal Police could undertake some of this training. The sorts of things that they are talking about are that these people should engage in negotiation, escalation, mediation and things of that kind before embarking on the use of serious force. A short two-week course is not going to get anyone anywhere with handling the sorts of things which are hopefully described in this document by the department.

Senator LINES: Do you have a view as to whether that training, even if it were increased beyond what the department is outlining its submission, should be delivered by Serco?

Mr Charles : No.

Senator LINES: No, you do not have a view?

Mr Charles : No, I am saying it should not be delivered by Serco. I entirely doubt Serco's ability to deliver it.

Ms Hammerton : Could I just add as well that I think the point perhaps needs to be reiterated that the police are already very well trained in dealing with exactly this kind of thing. Perhaps where clarity would be very beneficial is in relation to the circumstances in which private security officers call the police in, understanding that sometimes situations do escalate. What we would argue is that this should be in the hands of the police, as it currently is, due to their very excellent training that they receive, not in the hands of private security officers.

Senator LINES: Yes, I think that Professor Triggs made the point this morning that the incident occurs, and the staff respond whilst waiting for the police. It is that area that is very murky and not clear.

Dr Appleby : I will just add that, in our submission, who should be offering the training is not those people who have experience in training persons who are not authorised to use force but those institutions which have a large amount of experience in training officers who have been previously authorised to use force, whether that is the Federal Police or there are other officers such as Customs officers who have been authorised. They may be able to tap into those training institutions.

The only other point that I would make is just in response to your comment that the current certificate II is a sort of two-day intensive training course. In our submission we talk about not just qualifications and training but the hope that there would be some sorts of ongoing requirements for qualifications and training. Again, if this determination were made a disallowable instrument, these types of requirements could be discussed within the parliamentary process.

Senator LINES: That would require more funding in the contract. I think you have answered this—I think it was you, Dr Appleby, but I stand to be corrected. What examples are there of state or territory legislation which allows excessive force to be used without sanction provided that bad faith cannot be used against that user of excessive force?

Dr Appleby : In our submission we have extracted some provisions or referred to some provisions in both Commonwealth legislation in relation to the Federal Police and Customs legislation and some state legislation that provide examples of when indemnity or immunity is given to individual officers but not against the Commonwealth or the state. It demonstrates that what is being proposed here is extraordinary. I have not done the full research to work out whether there are any other provisions that would mirror this, although I know that in the evidence that was given earlier this morning there was some reference to one public order disturbance offence—

Senator LINES: Yes.

Dr Appleby : and that is the only one that I have become aware of, in the course of today.

Senator LINES: Can anyone shed light on your view of the rationale for the restriction by way of good faith defence on legal proceedings in the proposed section 197BF?

Mr Charles : To make it more difficult for asylum seekers to sue. There could be no other justification for it.

Senator LINES: Does anyone else have a view?

Mr Dunn : I can wager an opinion, which is not necessarily about this particular provision. It is not uncommon in a lot of administrative statutes to see an immunity provision for members of the Public Service who are using a power under that administrative statute. It indemnifies them or the Commonwealth for negligent actions provided that the actions are taken in good faith. That is a very different context, of course, to a tortious assault—

Senator LINES: Yes.

Mr Dunn : but that particular composition is not an unusual composition in an administrative context with respect to negligence.

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

Dr Appleby : I think this is one of the provisions where there is not clarity. I think there are two ways of interpreting the provision. One is that the force has to be authorised otherwise within the bill, and another interpretation is: even if the force exceeds that which is authorised, provided that it was used in good faith. Certainly, when I initially read the provision, my interpretation was that it was the latter—that, provided that good faith could be shown, and it is very difficult to show bad faith, then the bar on proceedings would apply. As you have heard today, that is a cause for serious concern.

Senator LINES: And that is your view, Mr Charles?

Mr Charles : Yes, it is. I agree entirely. Could I add something. Before, I think—it is my fault—I left Senator Macdonald in doubt as to the American authority in Graham v Connor. That, sir, was a decision in 1989. Obviously, it did not say that you could shoot someone in the back seven or eight times and expect to get away with it. But what it did was that it laid down a series of tests. What Dr Nolan was simply doing in that article, if you look at it, was to say how a police officer could structure a defence based on those tests.

CHAIR: Mr Charles, you know far more about the law than I ever did, but surely no Australian court could attribute anything but bad faith to an officer who shot a fleeing person seven times in the back? That as a matter of course must be bad faith—easily proved, I would have thought.

Mr Charles : It was not bad faith that was being discussed at that point.

CHAIR: No. But, in the Australian context, if that happened?

Mr Charles : What Dr Nolan says is that Scott was attempting to escape from Slager, and his attorney will no doubt attempt to convince the jury of Scott's dangerousness and his intention to cause injury to Slager or some other person.

CHAIR: You have anticipated another question I will ask when Senator Lines has finished. I will not interrupt her further. I will come back to that.

Senator LINES: I am just seeking a view. There was a piece in The Age dated 14 February where officers were describing a culture of excessive force at Maribyrnong Immigration Detention Centre, in Melbourne. Do you have a concern that, if we have an escalated culture of violence and we then have a bill being imposed in that culture that allows excessive force, the bar is moved to a level where there is already a bad situation and we then make it worse by putting these laws in place? Even with the best training in the world, how do we take that back to a more normal situation?

Mr Charles : It is like putting the lid on the kettle.

Senator LINES: Yes, I suppose so. Is that a reasonable assumption that I am making, or do you think we could start at ground zero and say, 'Right, we're all starting afresh and we've got these new powers'? How do we do that?

Dr Appleby : I think that the law is very important in fostering a change in culture and improving culture. It is only one factor in doing that. It is not a panacea, but it is a very important factor, and people do look to the law. Particularly when the law is changed and information is filtered down about changes in the law, that will affect culture. I think that the message that this law is giving in relation to that culture is a poor one. There is now a lack of clarity around the circumstances in which force can be used. They are very broad, but it is still unclear what the outer limits are, and, provided that you do it in good faith, even if you are outside those limits, there is no immunity, and that can only continue to foster a poor culture.

Senator LINES: Are there any other views on that?

Mr Dunn : I support those comments. The other point just to reiterate on the bar on proceedings is that the Law Council has suggested that we should make it very clear that 'proceedings' do not include criminal law proceedings so that there is no bar against actual charges against agents.

Senator LINES: But it currently does. It is criminal and civil, isn't it?

Mr Dunn : Yes. So that is a very significant part of that particular thing, which harks back to the issue of culture, because there should not really be any circumstances where there is an excuse for being able to commit criminal offences.

Senator LINES: I am not a lawyer. Is it also fair to assume that a law gets put in place, and through the court system it gets tested and expanded or contracted, and eventually definitions of 'good behaviour' or whatever the circumstances are become the custom and practice? But if, in the first instance, a person is not able to take action because of getting over the test of 'good faith', how does the law become tested over time? Is that also a problem?

Dr Appleby : Yes, there is no feedback mechanism. I think that one of the important roles that accountability mechanisms, including the courts, play is to feed back, 'Well, this is how this provision will operate; this is the extent of your powers,' and there is a reminder back to those people who have been authorised to use these powers. By removing that feedback mechanism, this is an initial introduction of legislation, and there is the possibility that it will then be forgotten—the limits.

Senator LINES: Is it an accepted practice that that is the way that we test and expand the definition of particular circumstances in law, through the court system? Is that an accepted practice?

Mr Charles : That is what is happening with the ICAC at the moment.

Senator LINES: Yes, that is true. Good point.

Miss Knackstredt : I would also just add to that that it is important that people who are subject to the use of force have access, like my colleague said in his opening statement, to legal advice and representation and know how to obtain that legal advice and representation. The cutting away of funding from the IAAA Scheme early last year severely restricts people's ability to obtain that legal advice and to test those laws.

Senator LINES: Yes. Thank you for that.

Ms Hammerton : To just add one more thing to what you were saying about the way the law develops: as we have all mentioned, there is in fact the current common-law position on the tests for use of force. I do not believe there has been any suggestion that that is inadequate. This is changing that very, very significantly. And, as you pointed out, because there is a bar on proceedings and there is immunity, where are the limits around that use of force? That is, I think, a very fundamental problem in relation to this bill.

Senator LINES: Thank you.

CHAIR: Finally, going back to the point that Mr Charles raised, the bill inserts a provision that limits the exercise of the power to use reasonable force by authorised officers, preventing them from doing any of the following: doing anything likely to cause grievous bodily harm, unless the officer reasonably believes that doing so is necessary to protect the life of or prevent serious injury to another person. If that provision is offensive, how do we handle the situation where there is a disturbance or more than a disturbance, a major disturbance, and before the police can arrive, if there happen to be police around—which on Christmas Island may not be as easy—and an officer believes that someone is about to take the life of another person? How do we deal with that?

Mr Charles : I understood Professor Triggs's submission to accept that in some circumstances you are going to have to have something of this kind in the legislation. Certainly one understands that, in an explosive atmosphere, as you might find in a detention centre, that situation may occur, and you can understand a need for clarity. One of the problems about that is that there is an absence of limits. There is an absence of some sort of penalty which can be put into operation if someone oversteps the mark—someone like Officer Slager.

CHAIR: But his excuse is reasonable belief. If the belief is not reasonable then he is guilty of murder, and you do not need special provision in the Migration Act for that.

Mr Charles : The excuse is reasonable belief, but someone in a detention centre who hit Reza Barati on the head with a rock will probably come up with a set of wonderful excuses: 'There was no other weapon I could use at the time. He had been behaving terribly and hitting people, and I thought everyone was at very serious risk of being injured, so I hit him on the head with a rock.' People will come up, in this situation, with a variety—

CHAIR: But it has to be in some way supported by fact.

Mr Charles : Yes, he will get into a witness box and say it, if anyone tests him. How do you get a whole series of other witnesses? Reza Barati will not be along to explain that that is absolutely untrue.

CHAIR: I do not want to go into that particular situation. Anyhow, I am not here to debate the issue. I will, with respect, listen to your view. Please continue.

Mr Charles : Partly, Senator, one would hope by improving conditions in detention centres, which might go a long way towards defusing some of these—

CHAIR: I could not agree more. Of course, the best way is not to have anyone to put in detention centres.

Mr Charles : Or not to have them.

CHAIR: Well, if you do not have people to put in them, you would not have them. It is a bit like children in detention. There are no longer children in detention—or there will not be.

Ms Hammerton : That is not true.

CHAIR: Well, if you are giving evidence later, we can talk about that. I know there used to be 2,000. There were, as of a few months ago, 126. The department indication was that they would be all released in a very short period of time.

Ms Hammerton : I do have the latest statistics from the department—

CHAIR: Well, I have got the department here.

Ms Hammerton : dated 31 March, and there are 124 children currently in detention in Australia and 103 children on Nauru in detention.

CHAIR: In Australia—well, I have the department here. I will get those figures from them later, thank you. But certainly the intention of the department—and we know this because, as I say, this committee every couple of months has evidence from the department, and we follow these figures very, very closely, down from over 2,000 to now 123, according to your figures—is to get rid of them all, except those that are there with their parents, who are held for appropriate reasons. Again that is a matter of debate, but thank you for that.

Miss Knackstredt : On the question of the population in detention centres: with the passage last year of the amendment to the Migration Act, the character bill amendment, the threshold for the character test was lowered from 'significant risk' to 'risk'. We have put that forth in our submission. That essentially means that there is a greater likelihood of redetaining people. If you like, in comparison to the cohort that was existing in detention before, there is a higher cohort in detention, a higher population in detention, and the risk threshold has allowed the department to redetain more people rather than lowering the population in detention, so there is a higher probability that further people will be redetained.

CHAIR: That is if the measures—which is the government's intention—are to deter people from trying to illegally come to Australia.

Miss Knackstredt : Sure. I guess what I was trying to clarify is that there is a possibility that more people will be redetained under the character test.

CHAIR: Sure. I accept that. And there is a possibility that there will be fewer people detained. Those possibilities are for the future, but I appreciate your point.

We are over time. Again, I very much thank you all for not just the short time we have had to take oral evidence from you but particularly your written submissions, which the committee does review. Thank you very much for that. Subject to the agreement of the committee, we may go a bit beyond our concluding time, which was to be 3.30, if Hansard and staff and everyone can manage that, just to try and give a fair opportunity to all those who have been called as witnesses. We will play that by ear.

Proceedings suspended from 13:14 to 13:52