The federal government is seeking extraordinary new powers that would make it largely immune from liability for inappropriate uses of force on people in immigration detention centres.
The new powers would allow immigration officers – which may include private contractors – to use “reasonable force against any person” if the officer believes it is necessary to protect the life, health or safety of people in detention or to maintain the good order, peace or security of a detention centre.
Such powers potentially give staff with a low level of training a greater level of immunity than that granted to state and federal police forces.
Officers would be able to use the powers in the migration amendment (maintaining the good order of immigration detention facilities) bill as long as they did not subject “a person to greater indignity than the authorised office reasonably believes necessary”.
The bill states that grievous bodily harm – which courts have held to mean injuries that lead to serious or permanent disfigurement – could be inflicted on detainees if the officer “reasonably believes that doing the thing is necessary to protest the life of, or to prevent serious injury to, another person (including the authorised officer)”.
The bill also seeks to restrict asylum seekers from bringing personal injury claims against the Commonwealth or private contractors relating to the use of force. They could only do so if it could be demonstrated that the detention officer did not exercise force “in good faith”.
The provision would give the federal government – and private contractors managing the centres – a level of immunity for personal injury claims that is not even available in relation to the actions of police officers.
While officers in the federal, NSW and Queensland police are personally exempt from liability in most injury claims, the state and federal governments can still be named in legal actions according to a Parliamentary Library analysis of the bill.
Claire O’Connor SC, a South Australian barrister who has represented asylum seekers in legal actions, said the bill raised serious concerns.
“In the correctional environment there are regulations which dictate the conditions of a prisoner’s regime including access to exercise, the use of solitary confinement,” she said. “Within detention centres, in spite of the courts repeatedly pointing this out as a problem, there are no regulations. People have been forcibly taken by handcuff, thrown into solitary sections of detention centres and kept there without any reason given, sometimes for weeks on end. That happens under the current system.
“From time to time the courts will criticise the use of this force and the use of solitary confinement as a breach of a duty to provide adequate care. I suspect the amendment is to sanction these cruel practices so that detainees who have been unlawfully injured cannot complain or sue for harm done”.
The parliamentary joint committee on human rights said the bill “appears to lack a number of safeguards that apply to analogous state and territory legislation governing the use of force in prisons”.
It includes no express requirement for force to be used as a last resort, or that inflicting injury should be avoided where possible.
“The bill would allow force to be used to prevent any action that disturbs the good order, peace or security of the facility, which provide an ill-defined and extremely broad authorisation for the use of force by IDSP officer,” the committee report said. “In contrast, analogous state and territory legislation governing the use of force in prisons generally limits the use of force to preventing or quelling a riot or disturbance”.
Currently private contractors are generally able to rely on powers under common law to use reasonable force. Police officers have statutory rules governing in what circumstances they can use force.
Although the bill does not specify what the training requirements are likely to be, the explanatory memorandum of the bill say that “at this time, the qualification and training requirements that are likely to be determined by the minister in writing … include the certificate level II in security operations.”
A certificate level II in security operations is a base level training course for security personnel.
Daniel Webb, the director of legal advocacy at the Human Rights Law Centre, said: “We’re the only country in the world that subjects asylum seekers to mandatory and indefinite detention as a first resort. Instead of creating excessive and unchecked powers to suppress unrest we should address its root causes – the length of time we leave innocent people detained in limbo.
“Immigration detention centres are incredibly closed environments. Increasing powers to use force while decreasing checks and balances on the exercise of those powers is a recipe for trouble.”
The bill is the subject of a Senate inquiry that is due to report in May.