The Australian government’s attempt to give inexperienced guards the right to use force against any person to maintain the ‘good order’ of detention centres is a dangerous development.
So many of the key terms and phrases contained in the government’s proposed amendment are left undefined that it is difficult to know precisely what these new powers will mean in practice. What we do know is this. The amendment provides security guards with unprecedented powers. It places the security guards and the exercise of their powers beyond the reach of any effective complaint, investigation and resolution process. And it leaves men, and women alike vulnerable to a power to use force that would be unfamiliar even to our police.
All Australians should be concerned.
In April this year, the Australian government introduced a bill that would allow immigration officers, including private contractors, to use ‘reasonable force against any person’ to maintain the ‘good order’ of both onshore and offshore immigration detention centres.
Officially, the Migration Amendment (Maintaining the Good Order of Immigration Detention Facilities) Bill 2015 was proposed to:
‘… address issues arising from incidents at a number of IDFs [immigration detention facilities], which highlighted uncertainty, on the part of the IDSP [immigration detention service providers], as to when it may act when confronted with public order disturbances in IDFs.’
In practice, the amendment is expected to raise serious questions about the reasonable use of force by security guards, a lack of appropriate training, and the absence of a meaningful complaint and resolution process for detainees.
Use of force
Currently, security guards at IDFs may only use reasonable force in response to an incident that is an actual or apprehended breach of the peace. Their right to use force is no greater than any other private Australian citizen.
In contrast, the amendment would provide security guards with a statutory power to use force analogous only to the power of prison guards. But a detention facility is not (or at least, is not meant to be) a prison focused on punishment and rehabilitation, and it should not be regulated in the same way.
The amendment does not define ‘force’. While the term is defined in the explanatory memorandum to the amendment, absent from the legislation the definition carries little weight. Not included in the legislation, it is not enforceable in a court of law.
The circumstances in which the use of force may be employed are also nebulous. The use of force is permitted for the purpose of maintaining ‘the good order, peace or security of an immigration detention facility’ but this phrase is also undefined. In fact, the explanatory memorandum states that the list of circumstances in which force may be used is purposefully ‘non exhaustive’.
The failure to define the use of force or to expressly limit the circumstances in which it may be used should raise concerns. Protection of a person’s bodily integrity should not be discarded lightly; it goes with a person’s right to life.
The amendment does provide that only those security guards who have undergone certain training and have obtained certain qualifications are authorised to use force. However, what training and qualifications must be obtained is not defined. The explanatory memorandum provides that the likely training that will be required will include the Certificate Level II in Security Operations. That certificate can be completed in as little as 17 days. By way of comparison, Australian Federal Police undergo initial training for 24 weeks and then undertake 12 months on-the-job training, while New South Wales Police officers are required to undergo training for a minimum of 1 and 2/3 years.
Either our police are over trained, given their powers, role and responsibilities, or IDF security guards are seriously under trained. The latter seems more likely.
Given the scope of the proposed amendment, one would expect appropriate safeguards to ensure that the powers are not abused. Instead, the safeguard mechanisms are weak.
The amendment tells us that a person who has been subjected to the use of force may complain to the Secretary of the Department of Immigration and Border Protection. The Secretary can then refer the complaint to the Commonwealth Ombudsman. But what happens if the Secretary does not refer the complaint? The most that a complainant can hope for is that the Ombudsman stumbles across the incident as part of their annual review of detention facilities.
Even if the complaint is referred to the Ombudsman, at best a set of recommendations may be forthcoming. And what becomes of those recommendations? The amendment does not explain whether the Secretary will be compelled to implement any recommendations made by the Ombudsman.
Finally, the entire complaints process is not subject to any judicial oversight or scrutiny, other than by the High Court, and then only where ‘the decision-maker makes a decision outside the limits of the function and powers conferred on him or her, or does something which he or she lacks power to do.’
While judicial oversight of certain administrative decisions remains intact via the High Court (because this cannot be overridden by any law of the Parliament), the amendment complicates and restricts the inalienable human right to be free from the unwarranted use of force.
Successive Australian governments have sought to demonise asylum seekers, painting them as violent or dangerous and as a risk to national security. But empowering security guards to use greater force ignores the possibility that it is the current system of mandatory and indefinite immigration detention itself that has caused the ‘incidents’ that provided the impetus for this amendment.
Raffaele Piccolo is a graduate from the University of Adelaide, holding a Bachelor of Laws and Bachelor of International Studies. He has a keen interest in international law and refugee law and is a member of the Refugee Sub-Committee of Australian Lawyers for Human Rights (ALHR). He wishes to acknowledge the assistance of Donna Naing and Claire Hammerton in providing feedback on drafts of this article.