Writing in 1982, David Miers and Alan Page observed that legislation often stems from ‘reactions.’ These reactions, whether of political parties, ministers, government departments or individual members of parliament, are directly attributable to circumstances, which they perceive as raising issues or constituting problems that require legislative action. Legislative reactions are frequently formulated in response to some controversial ‘event,’ public outcry and media publicity surrounding a particular case, or in response to some unforeseen contingency. Of course, there is, to use Jim Gobert’s words, ‘nothing inappropriate in a legislature addressing social problems that have been highlighted by events, and, indeed, Parliament would arguably be derelict in its duty if it failed to do so.’ Reactions are vital because they serve to investigate whether action, including legislation, is desirable and if so the form it should take. But, as Gobert points out, reactive legislation ‘driven by events is often hastily conceived and rushed through the legislative process without sufficient consideration or study, with the government’s short-term goal being to achieve political capital by appearing responsive to public anxieties.’ The Australian Migration Amendment (Maintaining the Good Order of Immigration Detention Facilities) Bill 2015 provides a compelling example of this type of law reform.

Minister for Immigration and Border Protection Peter Dutton (Credit: The Saturday Paper)
Although it would be inaccurate to claim that the Australian Government endeavoured to push through the Bill without any amendment or to treat Parliament merely as a rubber stamp, there’s little doubt that section 197BA was the corollary of public order disturbances in a number of immigration detention facilities in recent years. This was perfectly encapsulated by the Australian Minister for Immigration and Border Protection, Peter Dutton MP, who informed the House of Representatives in February 2015, that the proposed legislation stemmed from ‘incidents at a number of immigration detention facilities, which highlighted uncertainty, on the part of the immigration detention service providers, as to when it may act when confronted with public order disturbances in immigration detention facilities.’ Thus, the 2015 Bill sets out to address this perceived lacuna in the law and amend the Migration Act 1958 to permit an authorised officer to use 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 to ‘maintain the good order, peace or security of an immigration detention facility.’ The Bill limits the use of reasonable force to incidents that occur in relation to an immigration detention facility (also defined by the Bill), but it does specify a number of circumstances where an authorised officer may use such reasonable force as s/he believes reasonably necessary. These include, inter alia, to protect a person from harm or the threat of harm; to prevent escape; to protect property; to move a detainee and to protect a detainee from self-harm or the threat of self-harm―a thoroughly undesirable and paradoxical proviso which intimates that the more likely the detainee is to self-harm the more likely s/he is going to be subject to force.

The Bill also inserts provisions that deal explicitly with the training and qualification requirements of ‘authorised’ officers, imposes specific limits on the power to use reasonable force in an immigration detention facility, and provides for a statutory complaints mechanism (all of which merit further scrutiny), but in the interests of brevity the focus shall remain on the new version of section 197BA. In this regard, three aspects of the provision are particularly alarming.

First, the 2015 Bill not only gives private security officers the power to use force against people in immigration detention facilities, it also anticipates a high level of force, including force that results in ‘death or serious injury.’ Although the law on self-defence varies across the Australian state and territory jurisdictions, the use of a subjective test in the Bill to modify the objective test (what is reasonably necessary in the circumstances) for the use of force isn’t consistent with the regulation of the use of force in analogous contexts. It’s also bereft of the safeguards that apply under state and territory legislation governing the use of force in prisons.

Former Supreme Court judge Stephen Charles
Furthermore, the Bill is unnecessary and disproportionate to its purported aims; for instance, ‘the establishment of a safe and effective system of immigration detention.’ Rather, the proposed changes to the 1958 legislation potentially place detainees at greater risk of being subject to unnecessary and violent force by giving inappropriate power and unbridled discretion to inadequately trained officers. As former Victorian Supreme Court judge, Stephen Charles, told the Senate hearing, the provision ‘would inevitably encourage violence by guards against asylum seekers.’ Worse still, officers could use lethal force against a detainee, and as long as they act in ‘good faith,’ they would effectively be immune from civil or criminal liability. Indeed, even if proceedings were instituted, the burden of proof (‘to show the power was not exercised in good faith’) would be incredibly difficult to discharge, especially in circumstances where there were only two witnesses (the officer and the detainee) and the detainee had been fatally wounded.

Thirdly, the Bill may contravene Australia’s international obligations pursuant to the International Covenant on Civil and Political Rights, the Convention relating to the Status of Refugees and the Protocol relating to the Status of Refugees, the Convention against Torture, and perhaps even the UN Convention on the Rights of the Child (as the Bill permits the use of force against any ‘person or thing’ and thus appears to be potentially applicable to children in detention). Indeed, one need barely look further than the Twentieth Report of the Parliamentary Joint Human Rights Committee to observe the criticisms proffered therein, but importantly it emphasised that the statement of human rights compatibility attached to the Explanatory Memorandum accompanying the Bill ‘does not provide a sufficiently reasoned and evidence-based explanation of how the measures support a legitimate objective for the purposes of international human rights law.’

Photo from 16 January 2015 showing security forces entering Delta block of the Manus Island detention centre (Credit: Guardian Australia)
Of course, this isn’t to say that there aren’t other aspects to be critical of in the 2015 Bill as initially formulated. The criticisms of lobby groups, concerned citizens, and scholars of aspects of section 197BA―the absence of any clear definition of the circumstances in which it would be acceptable to use force against detainees; the lack of a legislative requirement that force should only be used as a measure of last resort; and the failure to define fundamental terms such as ‘reasonable force’ or ‘good order,’ to name a few―are valid and reasoned, but it’s at least some consolation that the Bill has been the subject of meaningful review by the Senate Legal and Constitutional Affairs Committee. Yet while such discourse is undoubtedly a welcome development, much deeper reflection is necessary before any definite decision is taken to introduce such a law. There are many individuals and organisations, including Australian Lawyers for Human Rights, who would argue the scope of the powers afforded to authorised officers in the Bill are completely disproportionate and indeed some would be in favour of rejecting the Bill in its entirety. It is difficult to disagree with this appraisal.

The Report of the Senate Legal and Constitutional Affairs Committee will be tabled today.

Note: This post is cross-posted on the Border Criminologies blog.