Migration Amendment (Prohibiting Items in Immigration Detention Facilities) Bill 2017

07 February 2018

From the start, I want to be clear. I don't want to see drugs in immigration detention centres. I don't want to see child exploitation material in immigration and transit centres. I don't want to see weapons in immigration detention centres. And I think we can all agree on those things. If they are in immigration detention centres today, it raises serious questions about the basic responsibility that the minister has to keep people safe. If there needs to be improved search and seizure powers, then we are willing to work with the government to take the appropriate and proportionate measures that are necessary based on proven evidence. But there are already wideranging powers under section 252 of the Migration Act. You'd have to wonder why more powers are needed. The Senate inquiry did not establish a case—the government did not put a case—around the need for these additional powers. You'd have to ask why the minister isn't able to control criminal activity within his detention centres under the current act and why he hasn't been able to take action against detention centre staff who are breaking the rules and profiting from the desperation of detainees.

The problem with the Migration Amendment (Prohibiting Items in Immigration Detention Facilities) Bill is that it gives the broadest possible powers to the minister to ban items in detention, to conduct searches and to change the rules at whim. This is at a time when we have unprecedented secrecy about what happens within the Immigration and Border Protection portfolio. This is about broad powers with no checks and balances on the Department of Home Affairs. One of the government's reasons for wanting these blanket bans on a range of items is based on the increased number of detainees in onshore immigration detention who have criminal convictions. These are people who've had their visas cancelled due to criminal activity proven in court. The argument goes that, to deal with the increased risk these people pose, all people in a detention centre should be subjected to the same restrictive practices. Yet more than 60 per cent of the current population of detention centres and transit centres are asylum seekers. These are overstayers or people who have not committed any criminal offence. So what the minister has failed to do—what the government has failed to do—is make a case for why the measures in this bill are required to be applied across the entire population in detention and immigration transit centres.

The measures in the bill are disproportionate to the stated risks and the government doesn't explain what it's done to address those risks in other ways rather than adopting broad and restrictive rules to the whole detainee population without considering the vulnerabilities and differences within that group. I am mindful of the teacher who punishes the whole class because one student hasn't handed in their homework. It's a one-size-fits-all approach that does more harm than good. Immigration detention, for most people, is for administrative purposes and is not punitive. Yet, perversely, many of the conditions that this bill wants to impose are already tougher, and will become more restrictive than, the conditions in prisons.

I want to look at the detail of what's being proposed here and why there are significant issues as it's currently written, including concerns about this bill from the Law Council of Australia, Legal Aid New South Wales, the Refugee Council of Australia, Amnesty International and, from my own electorate, the Blue Mountains Refugee Support Group. We are so concerned about the way the bill is written that we, and many of the submissions to the Senate inquiry, believe it should be started over.

Let's talk about the definition of a 'prohibited thing'. Currently, this includes illegal possessions such as narcotic drugs and child exploitation material. We agree these must be removed from centres, but we disagree with the minister's power to determine, by legislative instrument, what this category of prohibited things extends to. As the Law Council of Australia note in their submission on the bill, virtually any kind of item could be declared prohibited if the minister felt like it.

Concerns about this are exacerbated by the lack of transparency around the rules and guidelines visitors must follow now when visiting immigration detention facilities. I visited Villawood some years ago, and my recollection is of incredibly tight security. The regular visitors to Villawood from the Blue Mountains Refugee Support Group shared their experiences, these days, of constantly changing rules. From week to week there can be different criteria about the process they go through, the conditions they have to meet and who's allowed to visit. The most recent thing they told me is that last year visitors to detention centres were banned from bringing in fresh fruit, home-cooked food, board games, permission forms to seek professional help on a detainee's behalf and any paper or pens. They were all banned last year. Visitors now face draconian security measures and are only allowed to see one person at a time. Previously, visitors could inject some humanity for those facing indefinite detention by sharing fruit and food, playing board games and even celebrating birthdays. I'm quoting the Blue Mountains Refugee Support Group: 'We can't even take in a birthday cake or a piece of paper to record someone's birthday or phone number.' When you're banning birthday cake, you've really got to wonder how we've got to this point.

I note that these decisions regarding what counts as a prohibited item stand without any checks and balances to the minister's decision. They stand without any clear guidelines as to what exactly is an item that might be a risk to the health, safety or security of persons in the facility. They stand without any consideration of how the very law the Turnbull government proposes may further alienate and endanger those they're supposedly trying to keep safe.

There are already existing powers under section 252 of the Migration Act that allow officers to search for, and confiscate, dangerous items. I'm urged to ask why the minister desires even further rules, this further choking and veiled control over the privacy and lives of those in detention.

The explanatory memorandum given for this bill constantly referenced the few cases in which there had been violent crime and child exploitation material. Every one of us on this side has said that, while there must be measures introduced to ensure that these instances are not repeated, the entire body of immigration detention centres should not have to suffer at the discretion of a minister.

If you are going to change the rules, you need to take into account the first recommendation of the Law Council of Australia's submission—to narrow the definition of a prohibited thing—and, in accordance with the Legal Aid New South Wales proposal, make a prohibited thing defined in the statute to enable appropriate parliamentary oversight. There should not be these broad, sweeping, undefined provisions that are contained in this bill.

I want to talk about strip searches and room searches. This bill allows broad provisions relating to both those things with very few safeguards. I've already mentioned section 252 of the Migration Act, which relates to the screening and seizing powers authorised officers have in relation to people in detention and their visitors. It's worth understanding what is already allowed. I thank the Refugee Council of Australia for this list: sections 252, 252AA, 252A, 252C and 252G allow authorised officers to search and screen, without warrant, a person, their clothing and property, or conduct a strip search of a person in detention. This is to look for weapons and items that can be used to inflict bodily injury or to help the person to escape from the detention facility. They can also look for documents and other things that are evidence for cancelling a person's visa. Visitors can already be searched for items that can endanger the safety of people in detention and staff or that would disrupt the order of the facility. These are wide powers.

This bill wants to extend the law to search for prohibited items, which would include mobile phones. Surely there is something wrong with a strip search merely to find out whether or not a person is carrying a mobile phone or a SIM card. In examining the bill, the Senate committee concluded that the provisions are too broad and that strip searches of detainees should occur only when there is a reasonable suspicion that the detainee possesses an illegal substance or contraband. The Blue Mountains Refugee Support Group notes that:

… strip searches and draconian search provisions without search warrants, does not demonstrate the Australian values of decency and respect. It denies people who have fled to us for peace and safety, any sense of wellbeing and risks further traumatising them.

Let's talk about mobile phones. The government's explanatory memorandum details how mobile phones have enabled criminal activity within the immigration detention network, but fails to consider the positive impacts of mobile phones in the hands of people awaiting an administrative decision on their fate. Let me remind you of the mental health crisis within these detention centres: between January 2013 and August 2016 there were 1,730 recorded incidents of self-harm in immigration detention, according to the Australian Human Rights Commission. Imagine if we were to cut these same people off from the one link they have to family and external support networks. What if we were to take away the small sense of home that they find in these phone calls? One of my motivations for being in this place is to see that we better support people's mental health, so I cannot support a decision that deliberately worsens one vulnerable group's mental health. An already debilitatingly slow and lonely system is made worse for those who, in many instances, have done nothing wrong. What if, by taking their phones away, we make it even harder for them to contact legal representatives and assistance?

Amnesty International, an organisation which has visited many detention centres over many years, says its experience has been that landline and internet access has consistently proven to be inadequate in meeting the needs of people in detention, especially for people seeking asylum. In many facilities, access to computers and internet is based on rosters set by detention service providers, offering rigid timeslots that don't consider the time difference with people's countries of origin. There are many reports of family members trying, unsuccessfully, to contact loved ones in detention by going through the switchboard, and of lawyers trying to work within tight deadlines with their clients. Keep in mind that lawyers often need to speak to their clients about highly confidential and sensitive issues like rape and torture; a public phone booth with a queue of people behind you is not the ideal place for these conversations to happen. Every one of these concerns is echoed by the Australian Human Rights Commission, which has consistently argued there should be greater access to mobile phones for asylum seekers. In the absence of other appropriate communication options or direct intelligence relating to specific individuals, detainees should be allowed to have mobile phones.

I will talk briefly about access to medication. Individuals have a right to privacy and to manage their own health. The blanket ban on all medications once again unfairly impedes these rights, and innocent people are being punished for the mistakes of a few. When medications have been prescribed, detainees have the right to keep and administer these medications themselves. The people who are in detention for administrative purposes are already disempowered, and in fact we do them no benefit by turning them into even more institutionalised patients.

Finally, on sniffer dogs, we recognise that there is a role for detector dogs to be used in immigration detention and transit centres, but not when they are used on detainees. This was noted in recommendation 6 of Labor's Senate committee report. Clearly, the move to use sniffer dogs on detainees fails to respect the trauma and circumstances that someone seeking asylum may well have experienced. It only serves to further humiliate and traumatise those in centres.

We have a responsibility not to do more harm. But what we have here before us is a bill that further worsens the conditions of people who've undergone more pain or suffering than most of us can fathom. In a time w

rsens the conditions of people who've undergone more pain or suffering than most of us can fathom. In a time w