A Bill allowing guards to use potentially deadly force on detainees in immigration detention centres has been endorsed by the Coalition members of a senate inquiry, with Labor and Greens members splitting and delivering dissenting reports, arguing the legislation should not be passed in its current form.
The Bill aims to clarify the force guards are permitted to use on asylum seekers but has been heavily criticised for vague safeguards and inadequate avenues for appeal.
In their dissenting report, Labor senators recommended amendments to the Bill be made in line with submissions from the Australian Human Rights Commission and the Law Council.
Like other submissions, the groups drew attention to the fact the Bill allows officers to use force against asylum seekers if they “reasonably believe” it is necessary to keep “good order” or prevent injury to others.
The Committee heard from multiple witnesses that the subjectivity of these tests meant it would be hard to prove any guard had exceeded their authority.
The Bill also bars legal action being launched against the Commonwealth if the action is not undertaken in “good faith”, something the Committee heard was virtually impossible to prove.
In response, Coalition senators recommended that the Bill’s explanatory memorandum be amended and that limits be set on what reasonable force guards may use, including that it must not involve cruel, inhumane or degrading treatment.
But they declined to recommend such protections be placed in the Bill itself.
Claire Higgins, a research associate at the Kaldor Centre for International Refugee Law, said the Bill allowed force in a broad range of circumstances, and potentially in response to legitimate requests, dissent or protests.
“… as the Bill currently stands, the test for when force may be used is not well defined, and turns on the subjective belief of the authorised officer,” Higgins said.
“The subjectivity of the test may therefore make it difficult for detainees to know when the force that is used against them is authorised, which means that detainees may be less likely to challenge inappropriate and unauthorised use of force.”
Departing from the recommendations of the Coalition and Labor, the Greens’ dissenting report recommended the legislation be ditched and that, instead, the government alter the migration act to allow journalists access to detention centres.
Labor has previously put forward amendments to the Bill which address some of the concerns raised by human rights and legal groups.
But Paul Power, Chief Executive of the Refugee Council, told New Matilda the changes do not go far enough in ensuring force is used as a last resort, and after an “objective assessment of risk”.
“The amendments do not ameliorate the overall tone of the Bill, one that continues the role of demonising and dehumanising very vulnerable people, many of whom who have come to us seeking protection.
“There is also no reference to the requisite training that detention facility staff must have in relation to human rights standards and in dealing with psychologically traumatised people.”
Power added that Labor’s proposal to have the Ombudsman investigate complaints about the use of force was not a sufficient swap for proper judicial appeal.
“The Bill should most emphatically not be passed. If the Government is committed to good order in detention, it would ensure that there are legislated time limits on detention and independent monitoring and transparent reporting.”
The report issued by Coalition senators dismissed concerns about the inadequate checks on guards’ use of force.
“The committee regards the existence of objective tests for the reasonableness of the use of force as imperative to ensuring that the Bill is proportionate to meet its objectives, and welcomes the department's clear and repeated assurance that the Bill does not make the threshold for acceptable use of force a purely subjective matter,” it said.
Higgins said that, as noted in evidence to the Committee, the Bill made it “quite possible” a person could be killed by an officer’s use of force.
“Under the Bill, an officer may subject a person to grievous bodily harm through the use of force, where the officer reasonably believes the use of force to be necessary,” she said.
“The Explanatory Memorandum states clearly that grievous bodily harm includes death or serious injury.”
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