According to the Australian Government, the purpose of the Migration Amendment (Maintaining the Good Order of Immigration Detention Facilities) Bill 2015 (the Bill) is to insert a statutory framework into the Migration Act 1958 for the use of force in specified circumstances within Australian immigration detention facilities.
The Minister for Immigration and Border Protection, Peter Dutton stated in his second reading speech that the amendments in this Bill were needed to address issues arising from ‘incidents at a number of immigration detention facilities, which highlighted uncertainty, on the part of the immigration detention service providers, as to when it may act when confronted with public order disturbances in immigration detention facilities’.
The Minister referred to the Independent Review of the Incidents at the Christmas Island Immigration Detention Centre and Villawood Immigration Detention Centre, conducted by Allan Hawke and Helen Williams in 2011, which ‘recommended that the Department of Immigration and Border Protection more clearly articulate the responsibility of public order management between the Department of Immigration and Border Protection, the immigration detention service provider [IDSP], the Australian Federal Police and other police forces who may attend an immigration detention facility’.
So, experts, upon review of procedures within Immigration Detention Centers noted that there was need to clarify in legislation who has what role in a ‘critical incident’.
I was working in the Immigration Detention Centre on Christmas Island in 2010/11, at the height of our intake, with the IDC over-crowded, asylum seekers told they had to wait for years before a determination, tensions not only running high, but with no distraction from day to day, those in Detention consumed by their situation, leading to overwhelming feelings of helplessness and hopelessness.
A detainee’s overall situation often leads to not only anxiety and cause for depression, but also mischief or violent reactions to the smallest things. There is definite need for clear delegated authority to ‘restrain’ individuals who might be placing other’s safety at risk. But, is this Bill the answer?
The responsibility for providing Public Order Management during critical incidents was an issue of contention throughout 2010. Following the November 2009 incident, concerns were raised by both DIAC and the AFP about Serco’s capability in that regard.
Of course, safety within Detention facilities should be a paramount consideration.
But, how human rights compliant is this Bill, and how consistent is it with international law?
As required under Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth), the Government assesses the Bill’s compatibility with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of that Act.
Upon review, the Government considers that the Bill is compatible.
The Parliamentary Joint Committee on Human Rights has also considered the Bill in its Twentieth Report of the 44th Parliament, tabled in Parliament on 18 March 2015. The JCHR considered the Bill engaged and limited a number of rights.
The Parliamentary Joint Committee on Human Rights disputes that the report provides evidence in support of the measures contained in the Bill.
The Australian Lawyers for Human Rights expressed strong opposition to this Bill and recommended that it be rejected in its entirety. The ALHR argues that the Bill gives private security officers the power to use force against people, including children, in immigration detention facilities that is greater than the force allowed in analogous State and Territory prison legislation.
ALHR notes that most people in immigration detention facilities have not been convicted of, or even charged with, any offence. The ALHR has called for substantial amendments to the Bill, particularly provisions that are perceived to fundamentally encroach on a number of human rights including:
- The right to life;
- The non-derogable right against torture, cruel, inhuman and degrading conduct;
- The right to humane treatment in detention, and
- The right to effective remedy.
ALHR also notes that the Bill is not necessary and not proportionate to its purported aims, that there are inadequate statutory safeguards around the use of force, with the Bill placing private security guards beyond the law.
They also note that the Bill has inadequate transparency, investigative and complaints procedures. In particular, the bar on proceedings in all courts except the High Court unjustifiably puts private security officers above the law.
The Andrew & Renata Kaldor Centre for International Refugee Law and the Gilbert + Tobin Centre of Public Law at UNSW raise concerns that the Bill creates a significant risk that Australia’s international legal obligations will be violated, including obligations under the International Covenant on Civil and Political Rights (ICCPR) and the Convention against Torture (CAT), as well as nothing that the provisions in the Bill does not contain a clear set of criteria about when force may be used, the degree of force that may be used, or how much consideration an officer must give to the consequences of his or her actions when exercising force.
They also noted that the Bill does not provide for a strong accountability mechanism, and limits the right to an effective remedy for individuals whose human rights or freedoms have been violated.
The Law Council of Australia made it clear that they opposed the passage of the Bill, and noted that the Bill’s proposed amendments depart from the accepted standards of protection for asylum seekers in international and domestic law, key rule of law principles, and procedural fairness guarantees.
It is also argued that the proposed changes risk exacerbating existing tensions identified in the Explanatory Memorandum and may disproportionately impact children and other asylum seekers at risk.
The Law Council considered that there was insufficient evidence to demonstrate that the Bill was necessary. They noted that even if it can be demonstrated that the Bill is necessary, it may be unjust and disproportionate in meeting its objective because it contains inadequate safeguards against the abuse of the use of reasonable force, and imposes a bar on proceedings except in limited circumstances.
The Law Council suggests that there may be more appropriate alternatives to achieving good order in immigration detention than the proposed measures in the Bill.
The Refugee Council of Australia: noted that provisions in the Bill which permitted authorised officers to use force so as to maintain “the good order, peace or security” of a detention facility to be exceedingly broad, potentially allowing for force to be used inappropriately against people in detention who pose no risk to themselves or others.
It was also noted that it is unclear, for example, whether officers would be permitted under these provisions to use force in order to quell a peaceful protest.
The RCOA noted that while the Explanatory Memorandum accompanying the Bill states that the Department of Immigration and Border Protection will implement policies and procedures to ensure that force is used as a last resort and for the shortest possible time and must not involve cruel, inhuman or degrading treatment or be used as a punishment.
The Joint Parliamentary Committee on Human Rights in its Human Rights Scrutiny Report released on 18 March 2015 expressed concern that the Bill “appears to lack a number of safeguards” and asserted that “the placing of such safeguards on a policy, rather than a statutory, footing is insufficient to provide a justification for limitations on human rights”.
The Committee went on to note on the safeguards in place for the equivalent state and territory legislation governing the use of force in prisons would normally require that:
- force only be used as a last resort;
- force only be used if the purpose sought to be achieved cannot be achieved in a manner
not requiring the use of force;
- the infliction of injury be avoided if possible;
- the use of force to protect a person from a threat of harm apply only in the case of an imminent threat;
- the use of force to prevent a person from damaging, destroying or interfering with property be permissible only if the person is in the process of damaging the property or if there is reasonable apprehension of an immediate attack; and
- the use of force be limited to situations where the officer cannot otherwise protect themselves or others from harm.
All of these safeguards are missing from the current provisions of the Good Order Bill.
Life in Detention for asylum seekers is constantly uncertain, they live on edge, not only because of their unknown future and status determination, but also because they may live next door to the person form the same ethnicity or religion who persecuted them – leading to their attempt to seek asylum. Generations of warfare, tension and bad blood does not dissipate just because now you have to live under the same roof.
Studies have also show that asylum seekers living in detention are subject to anxiety, depression, self harm, re-traumatisaiton, and even physical and sexual abuse.
If this is truly the case, then the added pressure, knowing that the security guards, who are meant to be there for their protection, can violently turn on them, or their children at any time, in the name of maintaining “the good order, peace or security” within any given detention facility.
This Bill does not implement the principle of the use of force as a last resort, and therefore may be used in excess, without proper transparency mechanisms in place.
Every policy initiative has adverse affects, and unintended consequences. But, when the Bill is not human rights compliant, placing vulnerable lives in danger and at risk, it goes too far.
I have worked in Australia’s Immigration Detention Centres with an International Organisation in the past, and I have seen first hand how the vulnerable often miss out or are subject to abuse or further vulnerabilities.
My particular concern is for those already vulnerable – including those with a disability, those with a mental illness, for children, and for women. What is the guarantee that these vulnerable classes of persons will not be collateral damage in the face of such new legislation, or that the use of force will not be in-excessive, or wrongly applied?
Who will stand up for the vulnerable in the moment at which the use of force is being applied?
Our immigration policies have seen too many lives lost already. Let’s not add to the head count.