The Australian Human Rights Commission has conducted an inquiry into the issue of use of force in immigration detention and in transfers to and from immigration detention. This is a thematic inquiry, based on a number of specific complaints, that draws together observations about how force is used in a variety of different circumstances. The aim is to provide a foundation for systemic practical outcomes for people who are in immigration detention in Australia. The inquiry was undertaken pursuant to s 11(1)(f) of the Australian Human Rights Commission Act 1986 (Cth) (AHRC Act).
The issue of the use of force in immigration detention has been raised in a range of complaints against the Department of Home Affairs (the department) received by the Commission. This report deals thematically with a number of similar complaints. Examples drawn from particular complaints are used in case studies throughout this report.
The particular environment of immigration detention means that the use of force may occasionally be necessary. However, the use of force on detainees directly engages their rights. In particular, people who are deprived of their liberty have the right to be treated with humanity and with respect for their inherent dignity. For this reason, any use of force must be appropriately justified. There must be a legitimate reason for using force, for example, in order to protect the safety of others, and the degree of force used should be proportionate to that legitimate reason.
Given the significant impact on individual rights, any use of force must be necessary in the circumstances. Force should only be used as a measure of last resort. This means that available alternatives to using force, such as negotiation and de-escalation techniques should be employed and exhausted before there is a resort to force. Force should be used only for the shortest amount of time necessary. The degree of force used should not be excessive. Certainly, force should not be used for punishment or in a way that amounts to cruel, inhuman or degrading treatment.
When assessing if force is necessary, resort is sometimes to have risk assessments. This report considers the way in which these risk assessments are carried out. If risk assessments are not accurate, if they are not sufficiently tailored to the particular circumstances of the detainee, or if they are not sufficiently tailored to the particular circumstances in which the use of force is anticipated, it can result in force being used too readily. The Commission welcomes the fact that, following the commencement of this inquiry, the department has decided to review its Security Risk Assessment Tool.