Migration Amendment Bill 2015

I rise to speak on the Migration Amendment (Maintaining the Good Order of Immigration Detention Facilities) Bill 2015. Protecting our borders and stopping the despicable people-smuggling trade was a key pledge of the coalition government in order to keep Australia safe and secure. We on this side of the chamber are very proud to support strong border security measures. As I said earlier this week, the highest priority of any government is security of the country, and the bill adds to these measures. But before going into the details it is worth highlighting the contrast between the coalition on this side and Labor and the Greens on the other side.

Let us remember—and we should never forget—that it was Labor and the Greens, under the Rudd-Gillard-Rudd government, that weakened Australia's borders. Under four immigration ministers and two prime ministers Labor had 11 failed immigration policies, which resulted in almost 850 boats over six years in government, more than 50,000 people arriving illegally by boat, more than 1,100 people dying at sea and almost 2,000 children in detention at its peak. The Labor-Green government had an $11.6 billion budget blow-out on their failed immigration policies, and this required over $2 billion more for the coalition to urgently fix Labor's mess in relation to their failed policies on securing Australia's borders. Under Operation Sovereign Borders and with the exceptional work of Minister Morrison and Minister Dutton, only one boat has arrived in 2014 and 2015 to date.

Of course, following Labor's recent national conference the Leader of the Opposition is trying to convince the Australian people that he is a convert to, a true believer in, strong border protection policies and turning back the boats. I do not know how the Australian people can actually believe Labor, because the former Prime Minister, Kevin Rudd, said the same thing in 2007 and then presided over a catastrophic public policy and national security failure. Other senior colleagues of the Leader of the Opposition—the deputy leader, the leader of Labor in the Senate and Anthony Albanese—have all voted against boat turn-backs.

The only way to ensure the security of Australia's borders is with the coalition and Operation Sovereign Borders. Operation Sovereign Borders has been very successful in reducing the population in immigration detention. There was about 95 per cent of the total immigration detention population in 2013, and this has been reduced to 53 per cent in June 2015. The number of people in detention has reduced from over 12,000 in July 2013 to around 2,000 in June 2015. But this success has resulted in a change in the character of detainees in immigration detention facilities. Onshore immigration detention facilities do not only hold people waiting for processing. Rather, the onshore immigration detention networks hold an increasing number of detainees who present behavioural challenges, including people subject to adverse security assessments, people who have or are alleged to have committed serious criminal offences and others deemed to be of a high security risk, such as members of outlaw motorcycle gangs. As such, the Migration Amendment (Maintaining the Good Order of Immigration Detention Facilities) Bill 2015 amends the Migration Act 1958 to continue 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 for ensuring that these facilities themselves are in good order and are peaceful and secure. In amending the Migration Act the government is providing those working in our detention facilities with the tools they need to protect the life, health and safety of any person and to maintain the good order, peace and security of an immigration facility.

The amendments reflect the recommendations from an independent review of incidents at the Christmas Island and Villawood immigration detention centres in 2011. The review recommended the department more clearly articulate the responsibility for public order management between the department, the detention service provider and any attending police services.

The bill will provide for an authorised officer 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, including the authorised officer, in an immigration detention facility; or maintain the good order, peace or security of an immigration detention facility.

Without these amendments, which clarify the use of force and the responsibility for the management of public order in immigration detention facilities, the department's ability to uphold its responsibility to detainees and other persons in immigration detention facilities to ensure that they are free from harm will be limited.

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.

Currently, employees working in detention facilities rely on common law powers for the use of force which are available to ordinary citizens. In effect, this means that a court will determine whether a private citizen—in this case, an employee of the immigration detention services provider—lawfully used force by looking at what was objectively reasonable in the circumstances. This does not provide a clear basis for the use of force and impacts on the safety of those working in detention facilities and detainees. This bill clarifies the use of reasonable force and provides a clear legislative framework for employees to operate in.

These amendments are of particular importance in light of the changing profile of the detention population, including rising numbers of detainees with criminal convictions.. Onshore immigration detention facilities do not only hold people awaiting processing; rather the onshore immigration detention network holds an increasing number of detainees who present behavioural challenges, including people subject to adverse security assessments; people who have or are alleged to have committed serious criminal offences; and others deemed to be of a high security risk, such as members of outlaw motorcycle gangs.

The bill in particular provides that an authorised officer may use such reasonable force as the authorised officer reasonably believes is necessary to protect a person, including the authorised officer in an immigration detention facility, from harm or a threat of harm; protect a detainee in an immigration detention facility 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; or prevent action in an immigration detention facility by any person that endangers the life, health or safety of any person, including the authorised officer, in the immigration detention facility, or disturbs the good order, peace or security of the facility.

The proposed amendments will provide authorised officers with the clear authority to respond to detainees exhibiting behavioural conduct issues within immigration detention facilities. All authorised officers will be required to undergo appropriate training and maintain qualifications. Similar legislation already exists in the United Kingdom and New Zealand.

One of the concerns that has been raised is: what is being done to address the potential for abuse of these powers? The proposed amendments will insert provisions that specifically limit the exercise of the power to use reasonable force. The amendments also provide for a statutory complaints mechanism that will allow a person to direct a complaint to the Secretary of the Department of Immigration and Border Protection about the exercise of reasonable force.

Robust policies and procedures and comprehensive training will be essential components of the governance of the power to use reasonable force. The policies, procedures, guidelines and reporting requirements guiding the use of force in immigration detention facilities will be reviewed in consultation with the Australian Federal Police. When using reasonable force as a matter of policy, an officer must take all reasonable precautions appropriate to the circumstances of a vulnerable detainee. The bill allows for complaints that are clearly of a serious nature to be referred to the Ombudsman or the relevant police service for independent investigation.

The proposed amendments will allow sufficient time to ensure that the appropriate training and governance arrangements are in place. Governance arrangements around the management of serious incidents are being reviewed and strengthened in consultation with the Australian Federal Police.

There will be a strong interaction between the proposed amendments and the Australian Border Force Act 2015. The Australian Border Force Act 2015 and this bill are compatible with little overlap. The consequential bill to the Australian Border Force Act would amend the definition of 'authorised officer' to mean an officer authorised by the minister, secretary or Australian Border Force Commissioner.

The training and qualification requirements specified for authorised officers under this bill can be managed in conjunction with the Australian Border Force Commissioner's powers to determine what is required for particular Australian Border Force roles.

I think it is very important at this point in time to look at the views of the Senate Legal and Constitutional Affairs Legislation Committee, chaired by my Queensland colleague Senator Ian Macdonald, who tabled the report on this bill on 5 June 2015. The committee recommended that the bill be passed, subject to clarifications relating to: the operation of provisions when detainees are in transit between facilities and other places; the use of force being proportionate and an absolute last resort, following negotiation and de-escalation techniques; and parliamentary oversight of prescribed training and qualification requirements of detention centre personnel. The committee's report says at paragraph 3.1:

The Migration Amendment (Maintaining the Good Order of Immigration Detention Facilities) Bill 2015 has been drafted in response to real and pressing issues facing service providers in Australia's immigration detention facilities. The need for persons working in detention centres to have greater clarity about their powers to manage disturbances and maintain good order and safety has been noted since at least 2011. The more recent change in the demographic profile of the detainee population, with increasing risk of disturbances and violent incidents, makes the case for this legislation now a matter of some urgency.

It goes on to say, 'The committee is grateful for the large number of submissions that it received to the inquiry, many of them thoughtful and detailed. It has considered the various concerns raised, most of which are discussed in another chapter of the report.' Paragraph 3.3 of the report states:

The committee notes the government's mandate to deliver border protection policy settings that reflect the best interests of the Australian people, and that the good order and operational efficiency of detention facilities is manifestly essential to this goal. As the department reiterated during the inquiry, '[w]hat we are trying to achieve is the maintenance of standards of safety and security within detention centres that people are entitled to and enjoy within the broader community'.

The committee went on to say that it:

does not regard it as sufficient to leave service provider staff in detention facilities to manage disturbances and violence without any protection beyond the limited defensive powers provided under the common law. The bill establishes a clear authority, drawing upon comparative legislation and tailored to the particular circumstances of immigration detention, for service providers in detention facilities to exercise the powers necessary to protect themselves and others, and to maintain an environment of security and safety for all who reside and work there.

The committee went on to say that it believes that this legislation is necessary and appropriate, and should proceed.

In conclusion, the Australian government is committed to providing safe and secure immigration detention facilities. The demography of immigration detention facilities has changed. Immigration detention facilities now include increasing numbers of high-risk detainees including persons who have had their visas cancelled as a result of failing the character test, often due to convictions for drug and other serious criminal offences; persons who are a high security risk, such as members of outlaw motorcycle gangs; persons who are subject to adverse security assessments; and those persons who have become unlawful noncitizens as a result of breaching certain visa conditions. The presence of high-risk detainees with behavioural challenges, such as members of outlaw motorcycle gangs, 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 in a number of immigration detention facilities in recent years. This means that there is a need to provide higher security and more intensive management of these detainees. The Migration Amendment (Maintaining the Good Order of Immigration Detention Facilities) Bill is necessary to provide authorised officers with the resources to continue to manage the safety, security and peace of our immigration detention facilities.

This bill amends the Migration Act to allow an authorised person to use such reasonable force against any person or thing as the authorised officer reasonably believes is necessary to, specifically, protect the life, health or safety of any person, including the authorised officer, in an immigration detention facility, or maintain the good order, peace or security of an immigration detention facility. Without limiting the general power to use reasonable force, the bill provides that an authorised officer may use such reasonable force as the authorised officer reasonably believes is necessary to: protect a person, including that authorised officer, in an immigration detention facility from harm or threat of harm; protect a detainee in an immigration detention facility 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; or prevent action in an immigration detention facility by any person that does endanger the life, health or safety of persons in that facility or disturbs the good order, peace or security of the facility.

The bill limits the use of reasonable force to incidents that occur in relation to an immigration detention facility. The legislation strikes an appropriate balance between maintaining the good order of a facility and maintaining the safety of the people within it and the need to ensure that the use of force is reasonable, proportionate and appropriate. The coalition is maintaining strong border security measures and ensuring that all people in detention centres are safe from harm. The coalition will continue the proven and effective use of 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. The main objective of any government is the security of the people of the country, and this is what the coalition government is attempting to do.