Former Victorian supreme court judge tells Senate inquiry proposed new powers would ‘inevitably encourage violence by guards against asylum seekers’

This article is more than 5 years old

This article is more than 5 years old

A former Victorian supreme court judge says new powers proposed for guards in immigration detention centres would in effect authorise them “to beat asylum seekers to death”.

In extraordinary evidence to a Senate hearing on Thursday, Stephen Charles SC said the migration amendment (maintaining the good order of immigration detention facilities) bill 2015 would substantially expand the powers granted to guards in detention centres in a way that would “inevitably encourage violence by guards against asylum seekers”.

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.

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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.

Charles, who sat on the Victorian court of appeal until 2006, said the standard proposed in the bill would introduce a similar test to those that have been considered in the US, and drew parallels with the recent shooting of Walter Scott by the police officer Michael Slager.

“Time and again police in the United States have been acquitted in circumstances such as these,” Charles said.

“These amendments to the Migration Act will in effect authorise guards to beat asylum seekers to death on the basis they reasonably believe it is necessary … to do so.”

He said the fact there would be “no effective way to take proceedings against the commonwealth” would further encourage guards to use excessive force in detention centres, and described the training requirements proposed in the explanatory memorandum of the bill as a “joke in extremely bad taste”.

The bill will give the commonwealth, private companies and guards immunity from civil and criminal liability unless it could be demonstrated that the use of force was not in good faith.

The president of the Australian Human Rights Commission, Gillian Triggs, said the bar on proceedings would make it “virtually impossible” to bring forward an action, because of the difficulty of demonstrating bad faith in legal proceedings.

“Senior courts have ... explained the very high threshold that you must prove to demonstrate bad faith. It’s very hard to show a subjective intent of bad faith of a serving officer acting in the course of their employment,” Triggs said.

She said the language in the bill surrounding the scope of the powers “need to be significantly tightened up.”

Triggs added that if the powers were to be included into the Migration Act then the limits to the exercise of the power should also be clearly spelt out.

Gabrielle Appleby, associate professor at UNSW, said “the individuals authorised under this bill are not department officers, they are contractors”.

Appleby raised concerns about the training requirements for guards, which are not expressly set out in the bill and will instead be left up to the minister. The explanatory memorandum suggests the standards will be a certificate II in security operations, which are a base level training requirement for security operations.

“The determination by the minister is not a disallowable instrument. This means it’s not subject to parliamentary scrutiny,” she said.

The Senate inquiry follows reports of unrest at the Wickham Point detention centre in Darwin on Wednesday.