Peter Dutton's Migration Amendment (Prohibiting Items in Immigration Detention Facilities) Bill 2020

September 02, 2020

Deputy Speaker, I'm speaking to you from the electorate of Moreton, a very multicultural electorate, on the Migration Amendment (Prohibiting Items in Immigration Detention Facilities) Bill 2020. Next week the coalition government enters its eighth year of government—eight years with the Liberal and National Parties having somebody in the Lodge, even though that's rotated a bit. Let me repeat that: its eighth year of government. This bill is about people currently held in immigration detention facilities—either people who this coalition government put into immigration detention or those who have been its responsibility for what is now going into the eighth year. So forget Home Affairs Minister Dutton bleating on about what happened in the past. Anyone who's currently in immigration detention is the coalition's responsibility, and the fact that they've brought a bill before the parliament that includes such outrageously nebulous and sweeping powers is proof that the current and former ministers can't effectively manage those in their care.

There is some history to the introduction of this bill. The National Justice Project, on behalf of around 80 detainees, launched legal action in 2017 against the department for confiscating detainees' mobile phones. The legal action of the detainees was successful. They obtained an injunction from the Federal Court on the grounds that the officers involved did not have any authority to arbitrarily confiscate phones. The Department of Home Affairs appealed the decision, and they lost. In response to that humiliating loss, the government introduced the Migration Amendment (Clarification of Jurisdiction) Bill 2018. That bill sought to override the jurisdiction of the Federal Court to hear some immigration cases in the first instance. However, that bill did not progress through the House and ultimately lapsed at the last election.

The current bill before the House is a complete overreach. It attempts to ban almost any item from use within immigration detention facilities, including alternative places of detention, such as hotels just down the road, like the Kangaroo Point hotel in Brisbane. The government already has broad powers under the Migration Act. If there are illegal activities occurring in detention centres, they should be handled on a case-by-case basis, something the member for Ryan doesn't seem to understand. We do have sworn officers in the Queensland Police Service and Australian Federal Police who can respond to crimes. There are state, territory and Commonwealth laws already at the disposal of the government to investigate and halt any illegal activity. The design of this legislation is such that a 'prohibited thing' is not defined in the legislation; rather, Minister Dutton will have the ability to prohibit or ban almost any item for use within an immigration detention facility through the use of a disallowable instrument.

It is my view that a 'prohibited thing' should be defined in the legislation and brought before the parliament rather than snuck in via regulation. I'd also point out that people in immigration detention are held in administrative, not punitive, detention. As the Law Council of Australia observed:

It must be remembered that people in immigration detention are not prisoners, and their rights should not be curtailed as though they were.

They should not be punished by taking away their ability to contact their family or friends.

As deputy chair of the Parliamentary Joint Committee on Human Rights, which has already scrutinised this piece of legislation, I'm aware of the possible detrimental effect on detainees from prohibiting access to mobile phones or other electronic devices. As at 31 May this year, over 42 per cent of the total immigration detention cohort had been in detention for over a year, and more than a quarter had been in detention for over two years. Prohibiting access to mobile phones would severely restrict the ability of detainees to maintain contact with their family, their loved ones and their friends. Although the minister advised the human rights committee that detainees would have access to landline phones and the internet, that would not allow detainees to have sufficiently private conversations with their loved ones. Where the family of a detainee is located overseas, that may pose difficulties for detainees without mobile phones. Time differences may mean their calls can't be made or received during the night, which wouldn't allow the use of a landline provided in a common area, to be heard by all. The international human rights advice provided to the committee was:

… it does not appear that the alternative means of communication available to detainees who would no longer be able to access mobile phones and internet capable devices would sufficiently protect their right not to have their private and family life arbitrarily or unlawfully interfered with …

This bill also has enormous powers of search and seizure. It would allow for searches without a warrant for a prohibited thing. A detainee could be searched personally, along with their clothing and any property under the detainee's immediate control. This search could occur even if the officer conducting the search had no suspicion at all that the detainee had any such item. The bill also provides the ability to conduct strip searches for a prohibited thing. The explanatory memorandum states that the bill's purpose is to:

… seek to strengthen the Department of Home Affairs’ ability to regulate the possession of particular items in immigration detention facilities in order to ensure that the Department can provide a safe and secure environment for staff, detainees and visitors in an immigration detention facility.

However, an officer does not need to have formed a reasonable suspicion before they conduct a search for prohibited things, and without assessing any specific risk. The bill also empowers the minister to direct officers to seize any prohibited thing from all detainees. As pointed out in report 9 of 2020: Human rights scrutiny report, the lack of limitations on these powers in the bill risk being an arbitrary interference with the right to privacy, including the right to bodily integrity, and with the rights of the child. The explanatory memorandum to the bill states:

Evidence indicates that detainees are using mobile phones and other internet-capable devices to organise criminal activities inside and outside immigration detention facilities, to coordinate and assist escape efforts, as a commodity of exchange, to aid the movement of contraband, and to convey threats to other detainees and staff.

If that's the case and there is evidence of the criminal activity alleged, the current legal framework already permits the confiscation of mobile phones from detainees if there is reasonable cause. But the minister has just not made the case for why these broad, sweeping powers for confiscation of mobile phones from detainees in any circumstances, even without reasonable cause, are necessary.

The government claims this bill is all about providing a safe and secure environment for staff, detainees and visitors to an immigration detention facility, but if they really wanted to achieve that they would respond to the allegedly illegal behaviour by some detention facilities staff. The Department of Home Affairs, in response to a question on notice, provided the following information:

Between 1 January 2019 and 31 March 2020 there were eight investigations into allegations that staff of detention facilities were bringing in contraband including drugs. Of these:

none related to Department or Australian Border Force staff;

eight related to Serco officers; and

five related to the bringing of illicit drugs or drug paraphernalia into immigration detention centres

In an answer to question on notice to Senator Carr, the Office of the Commonwealth Ombudsman confirmed that it was:

… aware of allegations of conduct by department staff and/or Serco officers that could constitute unlawful behaviour. These allegations include:

General assault

Misuse of mechanical restraints

Excessive use of force

Drug trafficking.

The government's approach to safety in immigration detention facilities should be consistent, not some ad hoc approach which just targets those who are most vulnerable.

Labor has tried to work with the government to ensure that this legislation is targeted to achieve the stated outcome but unfortunately, the minister, surprisingly, is just not listening. This bill has already been considered by the Senate Standing Committee for the Scrutiny of Bills, which tabled its report in June 2020. That committee raised concerns about the limited reasoning offered in the explanatory memorandum to justify the various expansions of powers suggested in the bill. The Senate Standing Committee on Legal and Constitutional Affairs considered this bill. Labor senators tabled a dissenting report on the bill, recommending that the government either withdraw it or significantly amend the bill to address these concerns and ensure that the bill is focused on the specific risks and does not impose broad, sweeping measures that punish detainees who themselves might be at risk from high-risk detainees. The senators made other recommendations to limit the powers of the bill.

As I've already said, the Parliamentary Joint Committee on Human Rights, of which I'm the deputy chair, also scrutinised this bill. That report was tabled last week along with a dissenting report from all of the Labor members and Greens member, so half of the membership of the Human Rights Committee. In relation to this bill, the dissenting report recommended amendments, including that an officer may only search a detainee where they have first formed a reasonable suspicion that the detainee has in their possession the thing being searched for and that it can reasonably be demonstrated that the prohibited thing would pose a risk to the health, safety or security of persons in the facility.

Further to those parliamentary committee reports, the shadow minister for home affairs has written to the Acting Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs to try to work with the government to improve this legislation in line with the concerns that have already been raised by stakeholders and the aforementioned inquiries. The conditions that Labor would support this legislation include: that the government withdraw and rewrite the bill, or significantly amend the bill, to ensure that it doesn't impose broad, sweeping measures that punish all detainees, many of whom themselves may be at risk from high-risk detainees; that a 'prohibited thing' be clearly defined in legislation, not in a legislative instrument, and this would enable appropriate parliamentary oversight; that instructions to all staff, including contractors, be issued on how to implement the minister's directions and be contained in a disallowable instrument; that any amendments ensure detainees are not prevented from possessing or using electronic devices, such as mobile phones, unless there is evidence that removal is necessary and proportionate; that any amendments implement measures that provide extra protections for staff working in immigration detention facilities, especially health and medical professionals—that's a very good thing; and that all parties to migration detention matters use the same publicly published data regarding detention statistics.

Sadly, so far, the shadow minister has received no response to these reasonable requests. Labor opposes this bill in its current form, and I support the amendment put forward by the member for Scullin.