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17 April 2015

New law will increase violence against asylum seekers: former judge

New laws giving security guards in detention centres more power to use force have been criticised.

A new law giving security guards in detention centres power to cause grievous bodily harm if they "reasonably believe" it is necessary to protect life or prevent injury is likely to encourage abuse of and violence against asylum seekers in detention, a Senate committee has been told.

Former judge of the Victorian Court of Appeal Stephen Charles QC said the law allowed security guards to use lethal force "with impunity" because it would be "almost impossible" for them to face prosecution in the courts.

"These amendments will authorise detention centre guards to beat asylum seekers to death if they reasonably believe it is necessary to do so to save either themselves or another person from serious harm," he said.

Mr Charles cited a legal opinion that the police officer who shot a black American eight times in the back was likely to escape a murder conviction because of the way the "reasonable belief" test has been applied in the United States.

His concerns were amplified by several witnesses who appeared before a Senate committee in Sydney on Tuesday, including the president of the Human Rights Commission, Gillian Triggs.

"I think it is terrible legislation," Mr Charles told Fairfax Media after appearing before the committee. "The guards at present are very inadequately trained and they are talking about giving them minimal training and then making it impossible to sue them.

"It means they will be vastly less trained than prison guards or federal or state police, yet they are authorised to use lethal force with impunity because it's almost impossible to sue them."

The absence of any effective way for detainees to take legal action against security guards who used excessive force would encourage abuse and attacks on detainees, he said.

Representatives of human rights, refugee and law bodies told Senate's legal and constitutional committee the government should either scrap or comprehensively amend the so-called "good order" legislation.

Greens senator, Sarah Hanson-Young, said her party would be opposing the legislation in the Senate and urging cross-benchers to do the same.

"With the high levels of secrecy in detention centres, giving guards unchecked powers to use force is a recipe for further cover ups of abuse and misconduct" she said

The government maintains the legislation, called Maintaining Good Order of Immigration Detention Facilities, is necessary because of the increasing presence of "high risk detainees" such as members of outlaw bikie gangs, which is seen as a threat to the security of centres.

But critics say it leaves the overwhelming majority of detainees, who have no criminals records, vulnerable to excessive force by guards.

The legislation covers immigration detention centres on the mainland and Christmas Island, but not those on Nauru or Manus Island.

Immigration Minister Peter Dutton has told Parliament that detention centre staff now rely on common-law powers, as conferred on ordinary citizens, to exercise reasonable force when it is necessary to protect themselves and others from harm or threat of harm.

"Clearly, using reasonable force to manage issues of physical safety, good order, peace and security in an immigration detention facility is a matter for Parliament to decide, not the common law," he said.

Mr Dutton said that, provided reasonable force was exercised in good faith, the bill would bar court proceedings against the Commonwealth, including an authorised officer.

Several witnesses told the hearing the legislation failed to provide the clarity sought by organisations including the security contractor Serco.

Professor Triggs said: "It's clarity they asked for. It's clarity they haven't got in this bill."

Professor Triggs said limits on the use of force should be based on objective criteria of necessity and reasonableness and contained in the legislation. "If private contractors use excessive force, both the contractors and the Commonwealth should be legally accountable."

In its submission, the Law Council of Australia said the bill risked exacerbating existing tensions and may disproportionately impact on children and other asylum seekers who were at risk. The hearing was told 115 children were being held in mainland detention centres.

The Asylum Seeker Resource Centre also opposed the legislation and called on the government to address "the real problems" in detention centres, including poor living conditions, the lack of information given to people about their cases and the arbitrary and indefinite nature of detention.

It said broadening the coercive powers of security guards was unnecessary and dangerous.

Appearing for the department, the deputy CEO of border operations, Michael Outram, told the hearing the legislation represented a "measured response" to the threat posed by a small number of detainees. He maintained that any person who committed a criminal offence would be subject to criminal sanction.

The aim of the legislation was to provide a more "compliant" and safer environment in immigration detention so that all detainees enjoyed a higher quality of life, he said.