Legal rights for those in privately-run detention centres

On 13 May 2015, Terri spoke in the debate on a bill that would have the effective of reducing legal rights for people in privately-run detention centres.

Ms BUTLER (Griffith) (10:21): I rise to speak on the Migration Amendment (Maintaining the Good Order of Immigration Detention Facilities) Bill 2015. I would like to tell the House about an article that was in The Age on 14 February this year. It was entitled, 'Maribyrnong detention centre: growing "culture of excessive force"'. The journalists, Nick Toscano and Beau Donelly, reported as follows:

Government-contracted security officers have been investigated over a string of attacks on detainees inside Victoria's main immigration detention centre, with two guards recently sacked for serious misconduct.

They went on to report:

Officers say the violent clashes reflect a 'growing culture of excessive force' at the Maribyrnong Immigration Detention Centre in Melbourne's west, which is run on behalf of the federal government by private security firm Serco.

The report went on.

In talking about this bill it is really important to talk about what the real issues are in respect of detention centres and how private security firms that run those centres operate. Obviously, as a country, we have agreed to protect people who are fleeing persecution or perhaps fleeing torture or trauma back home. The question is, when people arrive here and ask for protection as refugees, what are we doing to keep them safe while they are waiting for us to assess whether or not their claim should be met? For example, once you set up a detention centre like the one that is referred to in that article, how are you actually going to make sure that people are kept safe?

The private sector companies that run those detention centres have a lot of responsibility. They have to care for people who have fled persecution, torture or trauma. A lot of people who are in that situation, obviously, are not in a particularly great state and have faced a lot of difficulty in their lives. We have to think really carefully about how you keep people safe while they are waiting for determination of their refugee status.

When looking at this bill, the question is really, 'What net effect will this bill have on the safety of people while they are waiting for the determination of their application for asylum?' This is not a border protection bill—we all know that both sides of politics favour strong protection and control of Australia's borders. The question is, having agreed voluntarily to help people when they seek our assistance, have a genuine fear of persecution or are coming under complementary protection measures, how do we make sure that they are kept safe?

Obviously, private companies have a lot of different incentives. These are for-profit entities that have government contracts to provide the facilities' management and, effectively, to have private sector guards involved in running detention centres. As businesses, the profit incentive is a very strong motivating incentive which they have and properly should have—as companies, they have obligations to shareholders to act in the best interests of the business. They also have regulatory obligations. Those regulatory obligations are very important in respect of keeping people safe. But those incentives pull in different ways.

It is really important that as well as regulation—and regulation is important—there be financial incentives that pull in the right direction. A clear financial incentive to keep people safe while you are looking after them is posed when, if you do not keep people safe, you are at risk. In other words, if there is a risk of being sued for a failure to keep people safe, that provides a strong financial incentive towards safety, security, better training of the private sector employee guards and better management of detention centres. Regulation is important in and of itself; it does, of course, mean that there should be strong and robust oversight and regulation of detention centres. But, in the real world, regulators often do not have the resources that they need in order to be 100 per cent effective, so you are much better off if there are also economic and financial incentives for operators to do the right thing.

To me this bill is really a financial and economic bill. It is a question about where risk lies. Should the risk lie with individual asylum seekers who have fled persecution, torture and trauma? Should they bear the risk, which is a physical risk, in the event that the detention centres are not run well? Alternatively, should it be the private providers who bear a proportion of the risk? Should it be the government that bears a proportion of the risk? Should it be the insurers of the private providers and the government that bear a proportion of the risk? That is currently the case. Because people can be sued if there are assaults, negligence or battery, or if injuries are caused, it is the insurers and of course the premium payers that are bearing some of the risk in respect of making sure that detention centres are run appropriately. That is important because, without that additional incentive, you can see how incentives might pull you the other way.

So I am very concerned that this bill, in effectively removing the right to sue from people who are being accommodated in detention centres—because that is what this bill does—the clear effect of this bill would be to make life less safe for people while they are under our care in immigration detention centres.

In responding to this bill, I want to speak specifically about section 197BF, which is the proposed provision that would provide an out clause for government and private providers from being sued. It is almost a complete blanket prohibition. Everyone in this place would know just how difficult it is for a plaintiff to prove an absence of good faith. Really, that is what the immunity seeks to do, although I will get to that shortly.

The question is, why is this even an issue? As I have just said, I have read to you a report from The Age in respect of concerns about the use of force in detention centres. There was an FOI request in 2013, and the response from the Department of Finance and Deregulation at the time indicated that 18 claims had been made by people housed in immigration detention in respect of breach of duty of care, negligence or breach of statutory duty. Those 18 had yet to be resolved at the time that that FOI response was given. I do not know whether there were any claims in financial year 2013-14 and, if so, whether or not those claims had been resolved.

Of course the existence of the ability to make those claims provides that financial incentive to providers to take every reasonable step possible to ensure the safety of the people housed within detention centres. This is a real issue. This bill poses a risk to the right to sue because of that immunity provision that I mentioned, proposed section 197BF.

It is very clear from the explanatory memorandum and the terms of the bill itself that there is a great big hole in the government's explanation and rationale for this bill when it comes to this immunity. In fact the Bills Digest even mentions:

No further information is provided in the Bill’s accompanying materials to substantiate or elaborate upon this claim.

The claim is the claim that without some degree of protection the immigration detention services provider may be reluctant to use reasonable force to protect a person or to contain a disturbance.

There is no explanation given in the materials about why the power provision, proposed section 197BA, would not be sufficient to meet that aim; why you would then need to go to the extraordinary step—and it is an extraordinary step—of section 197BF which would, as I have said, effectively deprive people of the right to sue. I say it is extraordinary because it is a similar sort of provision to that in section 75 of the Maritime Powers Act 2013. There was a somewhat similar provision in a now-repealed subsection—185(3AB)—of the Customs Act. But other than that, I have not had my attention drawn to any similar immunity provision of the kind that is now found in proposed section 197BF.

In fact, when you look at that repealed previous subsection that I mentioned it is actually slightly different in that it said that proceedings could not be instituted or continued where the person who had taken the action acted in good faith and used no more force than was authorised in subsection (3B). To be clear about the distinction: in that repealed example that I have given it was really clear that to rely on the immunity, the person who had exercised the force had to meet both requirements—the requirement of good faith and the requirement that the force used be no more than was authorised under the provision that was conferring the power to use the force in the first place.

But the proposed new section in this bill that we are talking about does not have that qualification. The question that is obvious to me is: why does the proposed section 197BF(1) explicitly require that for a person to rely on proposed section 197BF they must have used no more force than was authorised under proposed new section 197BA? That is such a blatant and obvious question to me, and it is quite surprising that the materials fail to deal with that question.

Obviously, it is not just me who has this concern; it is a concern that has been raised by the Australian Human Rights Commission in their submission and in the oral evidence by a Queen's Counsel who appeared at the Senate inquiry into the bill in his private capacity. It has also been raised by other people who were very concerned about the proposal, which is really about taking away the right to sue from asylum seekers.

I would be very strongly opposed to passing this bill in its current form because, to me, giving people the power to use reasonable force and then saying to asylum seekers and to people who are in detention centres, 'Even if the guard is negligent and you are injured; even if there is a breach of statutory duty; even if there is a breach of duty of care of any type; even if there is an assault; and even if there is a battery, you can't make a common-law claim because this provision effectively removes your right to do that.' That is terrible for the individual and it is also terrible for the broader economic and financial incentives around making sure that there is a financial reason—not just a moral and legal reason, which of course in and of themselves are both very strong reasons—for anyone who is a provider to ensure the safety of people under their care. I think that incentive is very important and so I would be very loathe to support any bill that took away that right to sue from these people.

To me, it is a question of human rights. It is a question of upholding the rule of law. In our democracy the rule of law is of great significance and importance. If we believe in the rule of law then we should certainly not be taking away rights to sue from people who have suffered assault, battery, breach of statutory duty or negligence leading to injury. That is the wrong approach. It is an inconsistent approach, in my view, with the way this country operates.

Of course it is not enough that people have a right to sue; there has to be access to justice as well. Access to justice is a very big question that has been grappled with in this place, in the Law Reform Commission and in the Productivity Commission most recently, with their report in respect of access to justice arrangements in this country. We do need to continue to improve access to justice for everyone, including the most vulnerable people in our society. It is hard to think of someone who could be more vulnerable than a person who was tortured in their home country and who is waiting for our protection. It is hard to think of someone who could be more vulnerable than someone who has fled persecution at home—a situation where they might be deprived of their liberty, where they might be at risk of death, where they might be at risk of torture and where they might be at risk of kidnapping back home. It is actually really hard to think of someone more vulnerable than the people in those detention centres who have those valid claims.

If we are serious about the rule of law, if we are serious about discharging our obligations and if we are serious about making sure, if we are going to have private providers—and I am as uncomfortable as the next person with the idea of for-profit-run immigration detention centres, but the fact is that they exist at the moment and we have to come to terms with that and manage that as well as we can—then there should be every possible incentive and every possible approach in place to ensure that it is in the interests of those providers and the interests of government for great training to be provided and for skilled guards to be in place—for those guards to know exactly where they stand, of course, but also for them to make sure that they use no more force than is reasonably necessary in the circumstances in resolving any issues and maintaining order. Of course maintaining order is really important, but it is no more important than maintaining safety and security for the people under our protection.

So, for those reasons I support the approach of amending the bill consistent with the Human Rights Commission's recommendations. Obviously, I have not touched on all of the issues raised by the Human Rights Commission in this address, but I have read their submission and I have read the transcript of Professor Triggs's oral evidence before the Senate inquiry in respect of the bill. I think that all of the points raised are very important and ought to be the subject of serious consideration in this place before any steps are taken to alter the rights of people who are under our protection.

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