Migration Amendment (Maintaining the Good Order of Immigration Detention Facilities) Bill 2015 - Speech 2

It is a good opportunity now to continue my remarks, which I started last night, on the Migration Amendment (Maintaining the Good Order of Immigration Detention Facilities) Bill 2015. This bill is part of the government's broader agenda to strengthen our border security. 

That was a key component of the policies that the government took to the last election, and it has been a great success since then. It has been such a great success that the Labor Party have now adopted the policies of the coalition. They have finally seen the light. They took many years to see the light, but they finally have seen that we need to have strong borders to save lives and create a secure nation for the people who live here.

This bill is only a small change which will help provide greater power and more options for the employees who put their own safety at risk in our detention centres. Our detention centres are now, of course, peopled with fewer people, thanks to the government's border protection policies. There are fewer people arriving here irregularly. There are fewer people now in detention centres. There are still some, though, particularly given the overhang that was left to the government by the previous government a couple of years ago now. The make-up of people in our detention centres is changing because there are fewer people coming from overseas, and it is right and proper that we should seek to make sure that the powers that are available to our offices in those detention facilities are up to date.

The government is committed to providing a safe and secure immigration detention network. The demography of our facilities, as I said, has changed. There is an increasing proportion of people of high risk in detention facilities. They include people who have had their visa cancelled as a result of failing character tests, often due to convictions for drug or other serious criminal offences. There are people who are a high security risk, such as members of gangs. There are some who are subject to adverse security assessments, and some have become unlawful noncitizens as a result of breaching visa conditions. It is an unfortunate consequence that there are some people, of course, in any population, be they in our local population or in detention facilities, who are not necessarily of a mind to do the right thing all the time.

I followed last night a contribution by Senator Lines, from the Labor Party. Even she herself admitted that there would be a percentage of people in detention facilities who are a high risk. I think she put the number at around 120. I do not have precise figures, but Senator Lines was arguing that 120 is not many and that we should not need these extra powers to deal with only 120 people. Actually, I believe that, even if there were one, two, five or 10 people who pose a high risk to the Australians who have to run these facilities, we should make sure that we give them the appropriate powers to make sure that they can maintain their own health and safety in having to deal with these high-risk detainees. Such detainees do, of course, create behavioural challenges, particularly those who are wont to commit crimes or have committed crimes in the past. They can potentially jeopardise the safety, security and peace of our immigration detention facilities and the safety of all persons within those facilities.

In fact, public order disturbances have arisen at a number of immigration detention facilities in recent years. The changes that the government is proposing here follow a review that was conducted of two of those incidents, one at Christmas Island and the other at the Villawood Immigration Detention Centre, both in 2011. The review was prepared on behalf of the then Minister for Immigration and Citizenship, Chris Bowen, and presented to him in 2011. That report made a number of recommendations, one of which was to more clearly articulate the responsibility between the department of immigration, the detention services providers, such as Serco and private contractors who run these facilities, and any attending police services. Often, when a disturbance does occur, police have to be called in. Those police are often under the jurisdiction of a different government, a state or territory government. There is obviously a need to coordinate all aspects of an emergency response in those situations.

These changes respond to that recommendation by clarifying that the authorised officers in Commonwealth detention facilities, who are often employed by private contractors, have the ability to use reasonable force to maintain safety, to protect their own health and to protect the health of the inmates themselves. There is increasingly a need to provide this higher security, and the Migration Amendment (Maintaining the Good Order of Immigration Detention Facilities) Bill 2015 is necessary to provide these officers with the resources needed to manage the safety, security and peace of our facilities.

The bill amends the Migration Act 1958 to allow an authorised officer to:

… use such reasonable force against any person or thing, as the authorised officer reasonably believes is necessary, to:

(a) protect the life, health or safety of any person (including the authorised officer) in an immigration detention facility; or

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

Without limiting the general power to use reasonable force, the bill in particular provides:

… an authorised officer may use such reasonable force as the authorised officer reasonably believes is necessary—

and the bill lists a number of things that the authorised officer can do in that instance, including:

… 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 …

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

… move a detainee within an immigration detention facility; or

… prevent action in an immigration detention facility by any person that:

(i) endangers the life, health or safety of any person … or

(ii) disturbs the good order, peace or security of the facility.

The bill uses the legal concept of 'reasonable force' to limit the actions that can be taken by an authorised officer. There are particular provisions in this bill which limit that power to ones that are reasonable. That is outlined as being that the authorised officer must make sure that, in using reasonable force, only enough force is used to protect the life, safety or health of other persons. Reasonable force itself, as I explained briefly last night, is not a new concept that government is inserting into this bill. It is a concept that is known in our common law, and indeed authorised officers today would have the general right to use reasonable force to protect their own safety and the safety of others; however, there is not a definitive definition in our common law of what that means. And that means that there is quite a bit of uncertainty for authorised officers in what they can and cannot do to protect themselves and others.

All this bill does is simply provide a codified and definitive outline of what reasonable force can reasonably be expected to be for authorised officers. I believe it is only fair and proper that we provide our officers, who are putting themselves on duty for us, with that certainty—with an environment that lets them do their job with sufficient understanding of what they can do, without the uncertainty of being subject to legal claims subsequent to an event that may cause them difficulty in managing a particular incident.

This bill reflects the rights and privileges that are provided to other offices in state and territory environments. Obviously police forces have such rights and privileges, but even more reflective of this bill is that often wardens and other officers of state or territory prison facilities would have similar rights and privileges under state and territory acts. And often, in modern times, those officers are also employed by private contractors in a state or territory environment. This bill simply reflects those state and territory provisions into a Commonwealth legal environment and into detention facilities that the Commonwealth government is responsible for. It is a change that will help provide for greater security and order in our detention facilities, and hopefully it contains provisions that will not need to be used very much. They certainly will not need to be used much if we continue to be able to protect our borders to make sure that people are not arriving here in an illegal or irregular fashion. This government will certainly maintain its vigilance in keeping people out of this country, and I hope any future government follows the lead of this government in maintaining that security and continuing to provide a strong border protection framework for Australia.

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