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Wednesday, 25 February 2015
Page: 1201


Mr DUTTON (DicksonMinister for Immigration and Border Protection) (09:01): I move:

That this bill be now read a second time.

The Migration Amendment (Maintaining the Good Order of Immigration Detention Facilities) Bill 2015 amends the Migration Act 1958to support the government's commitment to strong border protection and the establishment of a safe and effective system of immigration detention.

The government has a responsibility to detainees and other people in our immigration detention facilities to ensure that they are free from harm. The government is also responsible to ensure that these facilities themselves are in good order, peaceful and secure. In amending the Migration Act 1958 the government is providing those working in our detention facilities with the tools they need to protect the life, health or safety of any person, and to maintain the good order, peace or security within an immigration facility.

The amendments in this bill address issues arising from incidents at a number of immigration detention facilities, which highlighted uncertainty, on the part of the immigration detention service providers, as to when it may act when confronted with public order disturbances in immigration detention facilities. This uncertainty was considered in the Independent review of the incidents at the Christmas Island Immigration Detention Centre and Villawood Immigration Detention Centre (the Hawke-Williams report), conducted by Dr Allan Hawke AC and Ms Helen Williams AO in 2011. The Hawke-Williams report recommended that the Department of Immigration and Border Protection more clearly articulate the responsibility of public order management between the Department of Immigration and Border Protection, the immigration detention service provider, the Australian Federal Police and other police forces who may attend an immigration detention facility.

The amendments in this bill provide a legislative framework for the use of reasonable force within immigration detention facilities in Australia. Specifically, the bill provides clear authority for the use of reasonable force in immigration detention in Australia to:

protect a person's life, health or safety; or

maintain the good order, peace or security of the facility.

The provision of a legislative framework for the use of reasonable force will provide the immigration detention service provider with the tools needed to provide the first line of response and ensure the operation of the immigration detention network remains viable, against a backdrop of a change in the demography of immigration detention facilities.

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

an increasing number of people subject to adverse security assessments;

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

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

The presence of high-risk detainees with behavioural challenges has the potential to jeopardise the peace, good order and security of our immigration detention facilities and the safety of all people within those facilities, including staff and visitors.

The use of reasonable force is not a new concept to the Migration Act 1958. Various provisions in the Migration Act authorise the use of reasonable force in specific circumstances. For example, it may be necessary in certain circumstances to use reasonable force to carry out identification tests. There are currently, however, no provisions in the Migration Act 1958 that authorise the use of reasonable force as proposed in this amendment.

In the absence of legislation, officers and staff of the detention services provider rely on common-law powers, as conferred on ordinary citizens, to exercise reasonable force when it is necessary to protect themselves and others from harm or threat of harm. The extent of this authority is, however, limited.

Clearly, using reasonable force to manage issues of physical safety, good order, peace and security in an immigration detention facility is a matter for parliament to decide, not the common law.

This bill provides for suitably trained and qualified authorised officers to use such reasonable force against any person or thing as the authorised officer reasonably believes is necessary to:

protect the life, health or safety of any person in an immigration detention facility; and

maintain the good order, peace or security of an immigration detention facility.

In particular, the bill provides for an authorised officer to use reasonable force if that officer reasonably believes it is necessary to:

protect a person from harm or a threat of harm;

protect a detainee from self-harm or a threat of self-harm;

prevent the escape of a detainee from an immigration detention facility;

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

move a detainee within an immigration detention facility;

prevent action in an immigration detention facility by any person that endangers the life, health or safety of a person or disturbs the good order, peace or security of that facility. For example the detention service provider having to use reasonable force to separate visitors who are fighting.

The bill inserts into the Migration Act 1958 the new definition of 'immigration detention facility', that is: a detention centre established under the Migration Act 1958, or a place approved by the minister as a place of immigration detention. This restricts the powers in this bill to immigration detention facilities in Australia, including Christmas Island.

The bill inserts a provision that prevents the minister or the secretary from authorising an officer as an authorised officer unless the officer satisfies the training and qualification requirements determined by the minister in writing.

The bill inserts provisions that specifically limit the exercise of the power to use reasonable force by authorised officers, preventing them from doing any of the following:

using reasonable force to give nourishment or fluids to a detainee in an immigration detention facility;

subjecting a person to greater indignity than the officer reasonably believes is necessary in the circumstances; and

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

Provided the reasonable force is exercised in good faith, the bill bars court proceedings against the Commonwealth, including an authorised officer. This provision provides the appropriate balance between protecting authorised officers in the exercise of the power to use reasonable force and ensuring that the power is exercised in good faith. The provisions in this bill send a clear message to authorised officers that force is not to be exercised capriciously or inappropriately.

To further ensure that the use of force will not be abused, the bill will provide for a statutory complaints mechanism. This mechanism will allow a person to complain to the secretary about the exercise of the power to use reasonable force. The amendments will require the secretary to provide appropriate assistance to any complainant.

This complaints mechanism does not restrict a person from making a complaint directly to another source such the state or territory police services, the Australian Federal Police or indeed the Ombudsman. An appropriate complaints mechanism is an important accountability measure in relation to the exercise of the power to use reasonable force.

The government considers that safe and effective immigration detention policies and strong border security measures are not incompatible. This legislation strikes an appropriate balance between maintaining the good order of a facility and the safety of the people within it and the need to ensure that the use of force is reasonable, proportionate and appropriate. The government is maintaining stronger border security measures, but is ensuring that all people in immigration detention facilities, including the detainees themselves, are safe from harm.

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.

These measures include:

the development and implementation of appropriate governance instructions and administrative arrangements to guide authorised officers in the use of reasonable force;

the establishment of agreed protocols for the handover of responsibility for dealing with disturbances in immigration detention facilities between the department, the detention service provider, the AFP, state and territory police forces;

ensuring authorised officers meet capability and training standards, and hold appropriate qualifications to enable them to appropriately use reasonable force in immigration detention facilities; and

the use of rigorous incident reporting mechanisms for advising of all instances where reasonable force is used in immigration detention facilities.

In conclusion, the government will continue to use immigration detention as a tool to manage compliance with Australia's migration law and the removal of those who have no right to remain in Australia. Immigration detention will continue to support the orderly processing of migration to our country.

I trust this bill will have the support of members, most particularly those with an interest in ensuring the safety of all people in immigration detention facilities, and I commend the bill to the House.

Debate adjourned.