Verona Burgess: how baser practices took hold when good intentions failed

By Verona Burgess

Thursday March 22, 2018

Sydney, Australia – November 8, 2014: View of front of the State and Federal Law Courts in Sydney CBD.

When parliamentary efforts to codify the use of “reasonable force” against people in Australia’s immigration detention centres failed, it left a vacuum that has the Ombudsman deeply concerned. Verona Burgess reports.

Every story begins somewhere. This one started with the Commonwealth Ombudsman’s annual report for 2016-17 and a paragraph on page 69.

“The operations of an immigration detention facility is [sic] not supported by a legislative framework,” it said. “The reliance on an administrative rather than a legislative framework to underpin the operations of the immigration detention network remains a key concern for the office.”

What? Might the operations of the Australian detention centres be illegal? Well no – and common law kicks in when legislation doesn’t.

But there is an important point here.

“While placement in an immigration detention facility is mandatory for certain [unlawful non-citizens], it is administrative in nature, that is, an individual is detained for the purpose of conducting an administrative function rather than as an end state of the criminal justice system,” the report said.

Asked for more, the Ombudsman, Michael Manthorpe, pointed to state laws governing prisons, such as the Victoria Corrections Act 1986 and regulations which are very detailed and provide prison managers with direct parliamentary authority and guidance on such matters as the use of force on prisoners.

“However, there is no legislation or associated regulations that underpin the operations of immigration detention facilities,” he said. “The Department of Home Affairs … is reliant on a combination of service provider contracts, policies, guidelines and operating procedures.”

They did provide an administrative and operational level of guidance, but no explicit authority from the Parliament.

He was not suggesting this state of affairs was unlawful. “However, given the nature of immigration detention and the coercive nature of powers that may be exercised there, my view is that a legislative framework would provide a firmer base for detention facility staff, including detention service providers, to undertake certain actions that support the good order, security and welfare of the facility.  It could provide a firmer basis for defining the rights and obligations of staff and detainees alike.”

The road to hell is, of course, paved with good intentions. The government, in 2015, did introduce into Parliament the Migration Amendment (Maintaining the Good Order of Detention Facilities) Bill, which primarily tried to codify the use of “reasonable force” against people held in the centres.

The bill scraped through the Senate legal and constitutional affairs committee – which received a whopping 187 submissions – but with recommendations and two dissenting minority reports, from Labor (wanting amendments based on the Australian Human Right Commission and Law Council of Australia recommendations) and the Greens (rejecting it). It failed when Parliament was prorogued in April, 2016.

In lieu of codified rights and obligations, security reigned

But during inspections of detention centres in 2016-17, the Ombudsman’s office noticed an increasing emphasis on a “security-based” operational model.

“While the increasing numbers of detainees with histories of violent or anti-social behaviours require an increased focus on safety and security, we remain concerned that this may be at the expense of a focus on the welfare of detainees,” the annual report said.

Both welfare and security needed to be in balance; security-based models such as the “controlled-movement model” – with detainees restricted to accommodation areas, unable to move freely between common spaces – were the most restrictive.

“Whilst there are circumstances where this model is appropriate, such as in high-security compounds, facilities where detainees are vulnerable to coercion or intimidation, or immediately following periods of unrest, this model should not be the first preference for an administrative detention environment.”

Then there were restrictive practices. There were “shortfalls” associated with the use of mechanical restraints when transferring detainees; use of the controlled movement model as standard; [and] placing detainees in behaviour-management programs.

Force as first option, instead of last resort

Next came the use of force and the news wasn’t good there either, especially for the parade of human misery locked up in the centres.

“The office has noted an increasing use of unplanned force by the department when dealing with detainees. While it is accepted that use of force can be necessary to protect the individual, other people or property, we are concerned that the review of incident-management records did not reflect the use of deescalation techniques prior to the application of force.”

The report added, “On occasions, we perceived that some operational staff considered the application of physical force to address noncompliant behaviour as the start-point rather than the mid-point of the continuum [of force]. This suggests a continued need for training in this area.”

Where additional training had been undertaken, the office had observed an overall improvement. “That is, the first option is to approach a situation with a view to achieving a negotiated outcome first, with the use of force only considered as a last resort.”

Department says it can change

The Department of Home Affairs tried to make the best of successive governments’ Faustian political pacts.

“Immigration detention practices are appropriate and governed by sound policy, procedural guidelines and standard operating procedures,” it said in a statement. “The department maintains a robust administrative framework and a professional detention workforce. A suite of new Detention Standard Operating Procedures was introduced in September 2016 and has enhanced governance across the immigration detention network and reinforced the administrative nature of immigration detention. Many of the recommendations made by the Ombudsman are being addressed by the department.”

Perhaps he will offer glowing praise in the next annual report.

The suite of new operating procedures is not on the department’s website, so far as we could find: the department did not reply further when we asked.

Some stories don’t have an ending.

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