Anne Aly (Cowan, Australian Labor Party) Share this | Hansard source

I'm deeply concerned about the Migration Amendment (Prohibiting Items in Immigration Detention Facilities) Bill 2017—deeply concerned. But before I get into those concerns I do want to start by making the point that the reason for this bill and the overarching intent of this bill—that being keeping Australians safe, ensuring that illegal items do not find their way into detention centres and detention facilities where they may pose a threat to detainees and workers, and meeting our duty of care to both detainees and workers—is a noble intent and, surely, one that should be pursued. Indeed, it is an intent that Labor supports, and we have iterated that we're willing to work with the government on addressing the issues presented.

However, I believe that the purpose of this parliament is not just to come up with solutions to address issues. It's also to ensure that those solutions that we develop here are executed—and are able to be executed—in ways that are purposeful, meaningful, responsive and effective. On all of those measures—purposeful, meaningful, responsive and effective—this bill fails. I strongly make the point that that is the reason that Labor is opposing this bill. It fails to address the issues that it is meant to address, in ways that are going to be effective.

The government has neglected to provide any substantial justification for the measures that are proposed in this bill, and those measures do not come on advice of either Serco or International Health and Medical Services—both of the main providers of services in detention centres and detention facilities—which begs the question: why is this bill even necessary, especially when we consider that items like drugs, weapons and child exploitation material should never have been allowed in immigration detention facilities in the first place?

Minister Dutton has serious questions to answer if he's been sitting on his hands for the last five years or so allowing this to occur unchecked during the term of the Abbott-Turnbull government. I find it rather extraordinary that a minister who consistently boasts about being tough on everything from vegemite sandwiches to crime and border security would preside over incidents in detention where illegal items, including drugs, have been allowed to enter into facilities. A coronial inquest into the death of a detainee at the Villawood detention centre heard evidence that a detainee had methamphetamine in his blood at the time of his death, despite having been in the immigration detention for more than 10 months. That particular case raises concerns and questions about how these incidents were allowed to occur in the first place.

As far as I can see, it's just another example of this minister's gross incompetence. He talks tough all right, but, when it comes to the crunch, he fronts up with legislation such as this that is too broad, badly written and ill thought out, and has some serious consequences. In fact the only thing that this legislation guarantees is more power to Minister Dutton—the man, I might add, who was named the worst-performing health minister in 35 years.

I would like to continue to very strongly make this point that I mentioned earlier: Labor do not oppose the prohibition of illegal items in immigration detention facilities; in fact, we support it. As my colleagues have iterated time and time again, we welcome and are willing to work with the government on developing an effective approach to addressing the issue of illegal items that are entering detention facilities. As I mentioned, what we oppose is this bill, because it is too broad and ineffective. We've given the government the opportunity to make a case for those elements of the bill, including the prohibition of non-illegal items, and explain why the instrument proposed would not be disallowable.

The Senate inquiry provided ample opportunity for the government and for the minister to tell all Australians why this bill is supposedly the 'you beaut, ripper' solution to the issue of illegal items in detention facilities, but what did the government and what did this minister do? Did they take the opportunity to defend the bill at all? Did they take the opportunity to stand up and explain to Australia why this bill is necessary in its current form? No, they didn't.

In fact, the Senate inquiry raised some very key concerns. I think it's worthwhile looking at some of those key concerns. Of the 82 submissions that were received by the Senate inquiry, an overwhelming majority—80, in fact—raised significant concerns about the bill in its current form. Those concerns include the broad and unchecked power of the immigration minister to make a legislative instrument to determine a thing to be prohibited; the poor drafting of the bill, resulting in a broad definition; the fact that measures in the bill are disproportionate to the stated risks; and the fact that the government have failed to demonstrate why they have not sought to address risks within immigration detention in other ways, and instead have adopted an approach that applies broad and restrictive rules to the whole detainee population. They raised concerns about the impact and use of sniffer dogs.

That the broad drafting of the bill is unclear on the circumstances in which detainees may be deprived of the opportunity to store and manage their own medication was raised as a concern. The provisions relating to strip searches were raised as being 'too broad'. The point was made that strip searches should occur only where there is reasonable suspicion that a detainee is in possession of an illegal substance. There was a concern that the broad drafting of the bill does not allow appropriate safeguards, and that the public phones provided currently are not adequate to ensure detainees have timely access to their legal representatives. In a situation where the minister deems mobile phones to be prohibited, that is going to exacerbate the situation even more.

All of these concerns that were raised in this Senate inquiry have been exacerbated by the lack of transparency about the rules and guidelines that visitors must follow when visiting immigration detention facilities. Some of the stakeholders reported that they have even been prevented from taking pens and documents for detainees to sign when visiting these facilities.

In response to that Senate inquiry, Labor senators authored a dissenting report. They made seven recommendations in that dissenting report. Without going into too much detail, I would like to outline those seven recommendations. The first recommendation was that the bill be amended, in accordance with the first recommendation of the Law Council of Australia, to narrowly confine the definition of 'prohibited thing'. This would address the concerns that the bill is too broad in its drafting. The second recommendation was to ensure that detainees are not prevented from possessing or using electronic devices, such as mobile phones, unless there is evidence that their removal is both necessary and proportionate. That would address the concerns that the bill is a disproportionate response to risk.

The third recommendation was to ensure that medications obtained under prescription or supplements recommended by a health practitioner are not caught by the provision and that the provision is directed only at narcotic or restricted substances. This again would address the concern that the bill is too broad in the determination of a prohibited item and would also ensure that we continue to maintain our duty of care to those people in detention with regard to their health and wellbeing, particularly where they have a right to manage their own medication.

The fourth recommendation in the dissenting report by Labor senators was that searches be limited to detainees' personal effects and rooms in cases where there is reasonable suspicion. The fifth recommendation expressly referred to the principle that detainees not be searched unless there is reasonable suspicion that illegal substances or items are in their possession. Again both of these are addressing those concerns raised in the Senate inquiry. I might add that 80 out of 82 submissions raised concerns about the powers in this bill being too broad and the bill itself being too broad and not effective. The sixth recommendation has to do with detector dogs. The seventh recommendation was:

Subject to the preceding recommendations, Labor Party senators recommend that the bill be passed.

So there is an intent by Labor that the purpose of this bill be addressed and that the reasons for this bill be addressed. I reiterate that our opposition is to the drafting of the bill, the extraordinary powers that this bill would give to Minister Dutton and the lack of explanation given by the government for the measures in this bill. We want to ensure the safety of detainees, staff and visitors in immigration detention and transit facilities but this legislation does go too far.

As I mentioned, 80 out of 82 submissions raised concerns, and I've been through those concerns. One of the greatest concerns is the idea of the reasoned negotiation of risk. Every measure we employ, particularly around security and keeping Australians safe, should be commensurate with risk. We can't ignore the reasoned negotiation of risk. We can't allow ourselves to become a country that responds to risk with ineffective broad policies that have unintended consequences and that also miss the mark in actually being purposeful and meaningful for the risk that they are trying to address.

There is no reasonable negotiation here in the bill and no rationale for the measures the government has proposed. It hasn't taken the opportunity to put forward a case. I've come to the conclusion that this happens to be part of the government's modus operandi here, because, time and time again, I'm seeing the government introduce measures that are neither reasonable nor effective, particularly in this space. The government has pointed to the risk of a changing immigration detention population profile as a rationale for these measures, but we don't know the extent of that risk, because the government and the minister operate—and continue to operate and insist on operating—behind a veil of secrecy. Minister Dutton justifies the absoluteness of his authority in the name of keeping Australians safe. Yet these measures are disproportionate by all accounts and are an example—just one example—of this minister's overreaching authority. The measures are ineffective. They do nothing to regulate the inconsistent visitor guidelines across the immigration network.

Labor will oppose this bill on the principles that I have outlined here today. But we are willing to continue to work with the government to ensure the safety of all Australians, as well as those in detention.

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