Parliamentary speeches

Migration Amendment (Prohibiting Items in Immigration Detention Facilities) Bill 2020 - Second Reading

August 31, 2020

This bill, the Migration Amendment (Prohibiting Items in Immigration Detention Facilities) Bill 2020, would very significantly increase powers over people held in administrative forms of detention under the Migration Act, and—I make this point very clear at the outset—all of those people in immigration detention. This includes powers to enable the minister to ban almost any item for use in an immigration detention facility, with very limited safeguards—almost any item, but particularly mobile phones, detainees' means of maintaining contact with the outside world, with friends and family, and also, critically, their means of obtaining advice and alerting the broader public to the conditions in those centres.

This bill, accordingly, requires us to think about human rights and to think about the operation of our democracy. We should be doing so, of course, after the minister had clearly set out exactly why these powers were required and appropriate checks and balances around their use. He's not done so, and this is not good enough. To simply assert the changed composition of the cohort of people now in immigration detention is no justification for an across-the-board approach without any differentiation. The minister says that these powers are required because, in his words, 'a large proportion of people in detention have criminal histories,' but that can be no justification for blanket prohibitions—for not treating people as individuals on their own terms and for not recognising the particular circumstances of medical transferees, asylum seekers and people who've overstayed their visas, for example.

But this bill would amend the Migration Act to enable the minister to determine, by legislative instrument, prohibited things, in relation to immigration detention facilities and detainees. It would also enable the minister to issue binding written directives to authorised officers in relation to the exercise of these seizure powers. In other words, this is a renewed attempt by the government to amend the Migration Act to allow for the banning of almost any item, but principally mobile phones, from use within immigration detention facilities, including alternative places of detention such as hotels like the Preston Mantra and the Kangaroo Point hotel.

The government already has broad powers under the Migration Act and has failed to make the case as to why illegal activities in detention centres cannot be handled on a case-by-case basis or through existing state, territory and Commonwealth laws. The government has not established that existing laws and common law powers are insufficient in addressing such activities.

This bill, fundamentally, is a solution in search of a problem. It has been on the government's Notice Paper in one form or another for the past three years. But the fact is this: the government already has the powers it needs. The government already has the powers to remove prohibited items from people in immigration detention facilities. So Labor believes that if this bill were to be passed in its current form then it would result in serious, adverse and unwarranted consequences in respect of individuals in those facilities and more broadly.

Many of these concerns have previously been raised by stakeholders at the Senate inquiry into this bill and, indeed, in the context of the earlier bill. Of the 135 submissions to the inquiry of the Senate Legal and Constitutional Affairs Legislation Committee, only three support the legislation: those of the Department of Home Affairs—no particular surprise there—and its two contractors, Serco and IHMS. Stakeholders and experts more broadly, on the other hand, have made it very clear that there would be undesirable consequences for some of the most vulnerable people in immigration detention facilities if this legislation passed as presented to the House. That's because—on the aspect of the bill that has attracted the most interest in the community, and understandably so—mobile phones generally provide a positive benefit to detainees and their welfare, particularly when you take into account the fact that some 42 per cent of the total immigration detention cohort have been in detention for over a year and the Refugee Council have stated in their submission that the average number of days spent in detention is 553. That's the average time in detention. If we think about the need for any human being to be in contact with their peers, as well as the necessary contacts required for medical purposes, for legal advice and otherwise, that is an extraordinarily long period, especially in the context of the pandemic, when other means of contact are obviously very limited in these facilities. Of course, access to mobile phones also provides an important wide benefit in enabling the scrutiny of conditions and conduct at immigration detention facilities. It is concerning that this is not an issue of any significant interest to the government.

During the Senate inquiry, the Department of Home Affairs failed to elaborate on whether or how the common law powers and existing powers are insufficient. This is a fundamental point, because the current legal frameworks permit the confiscation of a mobile phone from a detainee if there is reasonable cause, which seems to me to be a pretty reasonable requirement. Fundamentally, the government have not made the case as to why the broad sweeping powers for the confiscation of mobile phones and search and seizure from any detainee in any circumstance are warranted.

A substantially similar bill to this was introduced into this House in 2017, but it did not pass the Senate and lapsed on the dissolution of the parliament last year. Labor had serious concerns in respect of a number of provisions of that bill. The concerns were shared by every organisation that contributed to the Senate Legal and Constitutional Affairs Committee's consideration, other than the Department of Home Affairs. Our concerns were then set out in seven recommendations made by the Labor senators on that committee. We made it clear that if these recommendations were positively responded to by the government and agreed as amendments we would enable the passage of that bill. But the government did not engage with that constructive proposal, and that bill lapsed. With this government, this issue and, indeed, pretty much any issue it's always about the politics, not about substantive decision-making. Even now, those issues have not been properly dealt with by the minister. They remain very serious concerns to Labor and to almost every organisation that engaged with the Senate inquiry into this bill.

Once again, the bill is before the House in the migration area that is almost friendless, although the department has now been joined by Serco and IHMS—hardly disinterested observers. I note that some changes have been made to the 2017 provisions. I will discuss these, and they are very important, but let me be very clear: as of now, the provisions of the bill before the House do not adequately address the concerns that we have raised. The minister has not adequately set out the basis for this power grab on his behalf. The powers this bill would confer are significant and they are coercive.

The bill raises some very important questions. Some are technical questions going to the detail of how to achieve an objective, but others are more fundamental: how we treat people, including vulnerable people who are in detention, which is administrative, not punitive, in nature under the migration act; whether we recognise their individual circumstances or regard them as part of a uniform class, regardless of the reasons of their detention, their particular needs and their particular vulnerabilities; and about how democracy should work, about the checks and balances that we should apply to executive power, including coercive powers like strip searches and denying people access to phones and to communication with the outside world.

Labor will always act constructively and seek to advance our national interests in this area of policymaking, but it's clear to us and it should be clear to members opposite that we can secure our borders without abandoning our humanity and that we can uphold the law and keep people—detainees, staff and others—safe in immigration detention facilities without executive overreach that is unnecessary and unchecked. We can and we must uphold human rights. This cannot be an optional extra in our decision-making and our lawmaking. Australia must be a leader and an exemplar in this regard. This requires us in this place to be satisfied that the proposed measures are necessary and proportionate. As of now, we in Labor are not satisfied. We have listened to the government and listened to the evidence and we have found it wanting. We will continue to engage constructively, however, and hope the minister and the government will reciprocate.

Mr Hawke interjecting

Giles: The minister at the table says this has been going on forever. It has, but the government's response has not shown any evidence of that. You are doing the same thing over and over again and expecting a different outcome. A different outcome is possible if you have regard to the evidence and, indeed, if you properly state the case you wish to make. My colleague Senator Keneally has written to the minister, setting out a basis upon which we could progress this legislation. We await a response. We await serious engagement with the serious issues we have raised. This bill and its history tell a story about this government and its attitude to immigration policy—about cynicism, about a willingness to treat people in our care in ways that they should not be treated and about a deep aversion to scrutiny.

In the minister's second reading speech, he sets great store by changes to the cohort of people presently detained and the consequences that, he asserts, flow from this. In its essence, this is the rationale for the bill before the House today. In the media and on social media the minister has pressed this case, heavy on rhetoric, light on facts—which is his style and the style of the Minister for Home Affairs, a role that he may be interested in—a critical fact being that prohibited items are already a vehicle under existing state, territory and Commonwealth laws, particularly narcotic drugs, child exploitation material and weapons. These items present a demonstrable risk to people in facilities, both detainees and staff.

The minister is of course entitled to carry on his audition for the Home Affairs portfolio, but legislation such as this should be treated with the utmost seriousness. It's an odd thing for a Liberal to seem so blase about treating people as members of a group rather than as individuals, especially so when, as he's fond of reminding us, some in that group are people with significant criminal histories, while others are not. While his department has stated that this legislation 'seeks to strike a balance between the individual rights of detainees and the protection of the community, facility staff, visitors and other detainees'—a reasonable objective, one with which I concur—there is little evidence of a search for balance between these considerations when it comes to the words of the minister. But it is this balance that we must be working to achieve, and this is Labor's approach to the bill. The second reading amendment I will move goes directly to this, as does Senator Keneally's letter to the minister.

The current bill does differ in several respects from the bill introduced in 2017. These represent improvements, but not sufficient improvements to support passage of the legislation in its present form. In particular, it's now proposed that the declaration by the minister that items are prohibited items is a disallowable instrument. This was not previously the case. However, as the Kaldor Centre seem to have made clear—and I will touch on this further—in the circumstances this concession is not as significant as it might appear. Medications and treatments provided for use by detainees cannot be declared prohibited items in respect of such use. Detector dogs may be used now only, it is proposed, to search facilities and not people, detainees or others present in a facility. Unlike in the former bill, the powers provided for will not be applicable to people in community detention. There is now a power, though, through which the minister would be able to make a legislative instrument in effect directing the seizure of a thing. Some of these changes address some concerns raised by others in respect of the previous bill—I do acknowledge this—but they do not resolve our concerns. This is why, having carefully considered the Senate committee's work and the submissions to it, Senator Keneally has written to the minister. There can be no doubt about Labor's position on this bill or, substantively, on the issues it seeks to put before the parliament.

I move:

That all words after "That" be omitted with a view to substituting the following words:

"whilst not declining to give the bill a second reading, the House notes that:

(1) illegal activity is illegal—even in detention centres;

(2) the Government already has the powers to address the concerns raised in the bill;

(3) Labor has written to the Acting Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs with a proposal to improve the bill, which, in its current form, will have adverse and unwarranted consequences; and

(4) as of the resumption of debate today, Labor has not received a response from the Acting Minister".

To address these four broad areas of concern, we have sought agreement from the government to withdraw and rewrite the bill or to amend the bill to ensure it doesn't impose broad and sweeping measures which would punish all detainees. As with the former bill, Labor now seeks to be constructive. We have listened to the government. We have listened to the experts and others who are concerned, including many constituents of mine, and put forward some proposals which we believe balance those considerations that need to be balanced. We await a response. But, without engagement from the government, we cannot support the bill that is presently before the House.

Members would be aware—and I hope they have carefully considered this—that this bill has been the subject of an inquiry by the Senate Legal and Constitutional Affairs Committee. Some 135 individuals and organisations made submissions to this inquiry. I take this opportunity to thank them for their engagement and acknowledge the work of the senators on the committee, in particular my Labor colleagues. Before I get to that, I will observe that the majority committee view, as expressed at paragraphs 2.70 to 2.73, is telling and quite extraordinary. In this, government members baldly state that they believe:

… the framework established by the bill would provide the Department of Home Affairs with the flexibility and the authority to ensure the ongoing safety and security of immigration detention facilities, in a way that would not have the effect of 'blanket banning' items.

It is hard to imagine a less convincing attempt at justification for the provisions in this bill, which do in fact just that. But perhaps that's because the evidence to the committee didn't give government members much to work with. It is deeply troubling that lawmakers could rely on trusting the executive to facilitate access to phones in the face of all the evidence put before them. As the government members put it:

… the committee expects the department will continue to ensure reasonable access to telephones …

Expects! The powers contained in this bill are far-reaching. Before we grant such powers to the executive, particularly in respect of some vulnerable people, we must surely be satisfied that they are necessary, proportionate and adequately circumscribed. That's our job. We can't do it by simply stating how we expect it should be done, not in any context and particularly not knowing what we now know about this government and the issues that took place in immigration detention under its watch.

The dissenting report of the Labor senators recognises the challenge the bill is intending to respond to but finds that the government has failed to make a case for why this situation cannot be handled on a case-by-case basis or through existing legislation. That's a conclusion that is almost impossible to disagree with. In terms of those existing powers, in the face of considerable evidence to the effect that they meet the needs of the case stated by the government, it is significant that the department failed to elaborate on whether or how such powers should be regarded as insufficient. The concern of Labor senators that the bill applies, without differentiation, to all detainees is a critical one. Of course high-risk individuals in detention should be treated accordingly, through targeted interventions, which could also provide further protections for staff in these facilities, if the government were serious about that issue.

The Labor senators' report raises additional issues that are worthy of mention. Firstly, the inconsistent approach on the part of this government to managing safety and risks in immigration detention. This is a serious matter, as the ombudsman has too often had to report to this parliament and to the community. We should be determined to keep everyone in our care, and indeed in our custody, safe.

Serious concerns are also raised when it comes to data, where considerable confusion has arisen, including in the course of the Senate inquiry process. To say the least, this is unhelpful, particularly when such store is placed in the composition of the detainee cohort. Lawmakers and others in the broader community should be able to engage in this debate on the basis of facts that are certain.

Further issues arise in relation to the failure of the government to engage with the concerns of the Senate Scrutiny of Bills Committee and also about the application of powers in this bill to alternative places of detention, a very significant issue in the present circumstances when there are, I believe, more than 200 people presently detained in APODs. So, I urge government members to carefully consider the report of the Legal and Constitutional Affairs Committee and perhaps to address that report in the course of their remarks in the debate in this place and in the other place as well, if it gets there.

Most of the debate in relation to this bill has been in relation to the issue of mobile phones. The policy of seeking to deny access to phones has been much criticised, and for good reason. Many submissions to the Senate inquiry set this out effectively. This is of particular importance in the context of the present pandemic, as the Bills Digest makes clear. Requirements of social distancing have denied detainees the capacity to have face-to-face meetings for some time now. Importantly, personal phones not only provide for privacy but reduce the risk of transmission through the use of shared devices. We should not overlook the anxiety of detainees, having regard to the physical nature of the facilities they are detained in and the evidence of community transmission in similarly confined environments.

Access to advice is important to detainees for practical and personal reasons. This is a matter of wellbeing and also of rights—the right to privacy, the right to freedom of expression and the right to representation, as well as, potentially, the constitutionally implied right to freedom of political communication. It is also noteworthy that the Australian Human Rights Commission has found that staff, as well as detainees themselves, have referred to the benefits of mobile phone use.

Statements to the effect that the intent is not to introduce a blanket ban are contradicted by the terms of the bill, which do not limit the powers of the minister. As the Human Rights Law Centre observed, contrary to statements in the explanatory memorandum that the amendments will provide for a targeted, intelligence-led, risk-based approach to the seizure of items, the proposed powers are designed to allow for a blanket ban on items that apply, regardless of circumstances. Once again, we simply cannot take the assurances of this government at face value. The minister could, and should, ensure that his proposed law matches these statements. He should also address directly the issue raised by the Kaldor Centre going to the implied freedom of communication and the potential inconsistency there.

The proposed powers that would enable searches of detainees and premises raise concerns too. Strip searches raise particular concerns about human dignity and privacy. It's one thing for the minister to recognise that the changed nature of the immigration detention population raises new issues; this is a reasonable point. But it does not, and cannot, follow that this provides a warrant for all those powers contained in the bill. Again, the proper approach is to clearly state the problem and match the solution to it, and to explain why it has to be that a case-by-case approach is not appropriate—recognising, of course, that our criminal laws apply to people in detention. The department has had no answer to this proposition, and the minister seems to want to wish it away. The Labor senators' report makes a telling point here:

If expert legal witnesses are correct in arguing that existing laws are adequate to deal with the types of situations described by the Government, the bill is a strong indication of the failure of the Government, the minister, and the Department of Home Affairs to manage complex issues in the detention centres.


I now turn to the question of oversight. Oversight—or, rather, its absence—was a feature of expert submissions to the Senate inquiry. Effective parliamentary oversight is an essential element of our democracy, but it's not something the present government is committed to with its fondness for delegated legislation. I've already acknowledged certain improvements in this bill from its predecessor, notably in providing that the declaration of a prohibited thing will now be disallowable, but it remains unsatisfactory from any perspective concerned with democratic accountability. Uncertainty compounds this too, with disagreement as to whether a single thing can be disallowed or whether the disallowance must apply to the entire list. This is a huge concern. The advice of the Parliamentary Library in this regard should give all members pause for thought. According to statements to the regulations and ordinances committee, this disallowance process cannot be generally used to amend an instrument. It follows that the utility of disallowance may be very limited in these circumstances. Again, we would have to take the government and the minister on trust. Further, as the Labor senators' dissenting report makes clear, the minister's written direction on actions going to prohibited things is not a disallowable instrument. On examination, the amendment to the previous bill seems rather more cosmetic than substantive.

Finally, it is important that we make clear that immigration detention facilities, including alternative places of detention, are not prisons. They are places of administrative detention. This distinction matters, even if this truth is inconvenient for the minister. We on the side of the House are anxious about the warnings that experts have given about the increasing securitisation of immigration detention. These warnings can't be ignored and the evidence of the Law Council of Australia should be heeded. It must be remembered that people in immigration detention are not prisoners, and their rights should not be curtailed as if they were. That's Labor's strong view too.

This bill is unnecessary. While it has had a long journey back to this place, in the form in which it has arrived today it cannot be supported. The minister needs to go back to the drawing board. He needs to clearly state his case, the problem he needs to solve and why present powers are insufficient for that purpose. He needs to have regard to the evidence, to state the facts and to listen to the experts.

He also needs to think about the values that we need to apply to this area of policymaking, not just the instrumental side but the values, the state of our democracy, our obligation to people who are in immigration detention and our obligation to the broader community. For these reasons, I encourage members opposite to think clearly about the issues this bill raises and to support the second reading amendment or, otherwise, to join us in voting down this bill and asking the government to come back with a better bill.