powers, will face appropriate charges. In particular, this would not prevent the institution of criminal proceedings against an authorised officer for the use of force which is not authorised by proposed section 197BA and is not in good faith. Within this passage, it appears that there is an intention to achieve the result that and inappropriate force is not condoned’. The Commission ‘excessive agrees that this should be the aim of the section. However, the language in the rest of the paragraph is For example, in determining the initial jurisdictional question, the Explanatory Memorandum says: the court decides that the authorised officer did not act in good faith, ‘If the court would have jurisdiction to consider the action brought against the authorised officer’. What should be made clear is that the court would also have jurisdiction to consider the action if the degree of force used was excessive or inappropriate, regardless of whether or not the officer acted in good faith. Similarly, the final sentence in the extract above provides that the section not prevent the institution of criminal proceedings against an authorised ‘would officer for the use of force which is not authorised by proposed section 197BA and is not in good faith’. What should be made clear is that if the degree of force used was excessive or inappropriate then criminal proceedings should be able to be instituted even if the power was exercised in good faith. Immunity for use of elsewhere in the Migration Act The amendment proposed by the Commission is consistent with the way in which similarly immunities in relation to the use of force are provided for in other parts of the Migration Act. For example: immunity for the use of force in boarding and searching certain aircraft is available the officer or person who took the action acted in good ‘if faith and used no more force than was authorised’; a person authorised to conduct a search of a person on certain and aircraft has an immunity the person acts in good faith and does not ‘if contravene’ the requirement that the person not use more force, ‘must or subject a person to greater indignity, than is reasonably necessary in order to conduct the search’; a person who, at the request of an authorised officer, assists in conducting a strip search of a detainee held in immigration detention at a prison or remand centre has an immunity the person acts in good ‘if faith and does not contravene’ a number of requirements including that the strip search not be conducted with greater force than is ‘must reasonably necessary’.
powers, will face appropriate charges. In particular, this would not prevent the institution of criminal proceedings against an authorised officer for the use of force which is not authorised by proposed section 197BA and is not in good faith. Within this passage, it appears that there is an intention to achieve the result that ‘excessive and inappropriate force is not condoned’. The Commission agrees that this should be the aim of the section. However, the language in the rest of the paragraph is For example, in determining the initial jurisdictional question, the Explanatory Memorandum says: ‘If the court decides that the authorised officer did not act in good faith, the court would have jurisdiction to consider the action brought against the authorised officer’. What should be made clear is that the court would also have jurisdiction to consider the action if the degree of force used was excessive or inappropriate, regardless of whether or not the officer acted in good faith. Similarly, the final sentence in the extract above provides that the section ‘would not prevent the institution of criminal proceedings against an authorised officer for the use of force which is not authorised by proposed section 197BA and is not in good faith’. What should be made clear is that if the degree of force used was excessive or inappropriate then criminal proceedings should be able to be instituted even if the power was exercised in good faith. Immunity for use of elsewhere in the Migration Act The amendment proposed by the Commission is consistent with the way in which similarly immunities in relation to the use of force are provided for in other parts of the Migration Act. For example: immunity for the use of force in boarding and searching certain aircraft is available ‘if the officer or person who took the action acted in good faith and used no more force than was authorised’; a person authorised to conduct a search of a person on certain and aircraft has an immunity ‘if the person acts in good faith and does not contravene’ the requirement that the person ‘must not use more force, or subject a person to greater indignity, than is reasonably necessary in order to conduct the search’; a person who, at the request of an authorised officer, assists in conducting a strip search of a detainee held in immigration detention at a prison or remand centre has an immunity ‘if the person acts in good faith and does not contravene’ a number of requirements including that the strip search ‘must not be conducted with greater force than is reasonably necessary’.
2015%20Submission%20on%20Good%20Order%20of%20Immigration%20Detention.docx