Bill
Migration Amendment (Maintaining the Good Order of Immigration Detention Facilities) Bill 2015
lapsed, as at 2016-04-17. Immigration and Border Protection portfolio.
- Sponsor
- Not recorded
- Portfolio
- Immigration and Border Protection
Recorded stages
- introduced — 2015-02-25
- second reading — 2015-02-25
- second reading — 2015-05-13
- second reading — 2015-05-13
- committee — 2015-05-13
- third reading — 2015-05-13
- introduced — 2015-05-13
- second reading — 2015-05-13
- second reading — 2015-08-19
- second reading — 2015-08-20
- other — 2016-04-17
Divisions
- Richard Marles The Migration Amendment (Maintaining the Good Order of Immigration Detention Facilities) Bill 2015 seeks to define and regulate the use of force in detention facilities by amending the Migration Act 1958. The use of force in facilities such as Villawood and Maribyrnong is currently undefined and unregulated by any statute and therefore operates under the common law. Labor supports the general intent of this bill, however we have a number of concerns regarding the specific provisions of it. These concerns are shared by the Australian Human Rights Commission, which provided a comprehensive submission to the Senate inquiry into this bill which is currently underway. The Human Rights Commission submission makes nine recommendations which seek to address its concerns with the bill and Labor is now proposing to move amendments to the bill to give effect to those recommendations. At the outset, let me say that, in the event these amendments do not pass, Labor will not be in a position to support the bill. I do say again, however, that Labor supports the underlying premise of this bill: to put in place a legislative framework for the use of reasonable force in detention facilities rather than allowing the use of force to continue to operate under the common law. Operating under the common law means that the officers employed in detention centres, either as Commonwealth employees or as employees of detention service providers, have the same common law powers to deal with public order disturbances as do private citizens. It is considered undesirable, both by the government and by the staff working in the detention facilities, for reliance on the common law to continue. The fundamental problem with using the common law in this context is that it is very difficult to determine, at the time the decision on whether to use force or not has to be made, whether it is reasonable in the circumstances. Often the answer to that question only becomes apparent after the eve — 2015-05-13, House of Representatives: affirmative, ayes 81, noes 52
- Richard Marles by leave—I move opposition amendments (1) to (11), as circulated in my name, together: (1) Schedule 1, item 5, page 4 (after line 1), after the heading to Division 7B, insert: Subdivision A—Maintaining the good order etc. of immigration detention facilities (2) Schedule 1, item 5, page 4 (lines 4 to 6), omit "such reasonable force against any person or thing, as the authorised officer reasonably believes is necessary,", substitute "such force against any person or thing as is necessary and reasonable". (3) Schedule 1, item 5, page 4 (lines 11 to 13), omit "such reasonable force as the authorised officer reasonably believes is necessary under that subsection", substitute "under that subsection such force as is necessary and reasonable". (4) Schedule 1, item 5, page 5 (lines 7 and 8), omit "the authorised officer reasonably believes is necessary", substitute "is necessary and reasonable". (5) Schedule 1, item 5, page 5 (after line 14), after subsection (5), insert: (5A) An authorised officer must not use force against a person under subsection (1) except: (a) as a measure of last resort, taking into account other available alternatives such as negotiation and de-escalation; and (b) for the shortest amount of time that is necessary. (5B) An authorised officer must not use force against a person under subsection (1): (a) in a way that amounts to: (i) cruel, inhuman or degrading treatment; or (ii) punishment; or (b) if the force is beyond that which is necessary and reasonablein the circumstances, including: (i) force where none is needed; (ii) more force than is needed; (iii) force, or a level of force, that continues after the necessity for it has ended; (iv) a knowingly wrongful use of force. (5C) An authorised officer must not exercise the power under subsection (1) to move a detainee within an immigration detention facility unless: (a) an authorised officer has requested the detainee to move to another part of the facility; and (b) the request is made — 2015-05-13, House of Representatives: negative, ayes 50, noes 82
- Craig Kelly The question now is that the bill be agreed to. — 2015-05-13, House of Representatives: affirmative, ayes 79, noes 51
Plain-language summary
Written by a model from the explanatory memorandum; not the record, as at 2015-02-25.
The bill would change the Migration Act 1958 to let authorised officers use reasonable force in immigration detention facilities to protect people, maintain order, or prevent escapes.
Officers could use force they believe is necessary for specific purposes, such as stopping self-harm, preventing property damage, or moving detainees, but only for incidents at these facilities.
The bill sets limits on this power, including a ban on using force to give food or fluids, and requires officers to meet training standards set by the Minister.
- The bill would allow authorised officers to use reasonable force in immigration detention facilities.
- The bill would define immigration detention facilities and limit the use of force to incidents at those facilities.
- The bill would prohibit using force to administer nourishment or fluids to detainees.
- The bill would require officers to meet training and qualification requirements determined by the Minister.
- The bill would create a complaints mechanism for people to complain to the Secretary about the use of force.
- The bill would bar legal action against the Commonwealth for good-faith use of force, except for High Court jurisdiction.
Authorised officers, detainees, and other people in immigration detention facilities, as well as the Department of Immigration and Border Protection.
Sources
em
billhome