Andrew Giles (Scullin, Australian Labor Party, Shadow Assistant Minister for Schools) Share this | Hansard source

I was present in the chamber last night for the contribution of the member for Melbourne, which warrants a response. The Migration Amendment (Prohibiting Items in Immigration Detention Facilities) Bill 2017, which we are debating, raises serious issues and deserves serious consideration on its terms. It is disappointing, to say the very least, that the member for Melbourne chose to lecture the Labor Party on wider policy questions connected to immigration and asylum rather than examine the provisions in this bill. I will not be lectured by the member for Melbourne, nor by his party, and I say this to him and to them: if you are concerned to change this most difficult debate in Australia, changing its politics is as much your obligation as anyone else's. Now is not the time, much less the place, for seeking narrow partisan advantage. The provisions of this bill, the extraordinary powers that would be accorded the Minister for Home Affairs, deserve the full scrutiny of all of us in this place who profess our concern for human rights, particularly the human rights of very vulnerable people. So perhaps the member might reflect on this and on how change is effected and how we make a difference to the lives of others. It's to make just such a difference that brings me and my colleagues in the Labor Party into this place—a determination to build a better and fairer society for all, not to commentate nor to critique others.

It is in this context and in this spirit that I turn to the provisions of the bill before the House and raise my concerns with the bill as presented. It is the reason why I was so pleased to be able to second the amendment moved by the shadow minister, the member for Blair. May I also say that I was pleased to have been in the House for the contrasting contribution of my friend the member for Indi, who, as ever, made a passionate and thoughtful contribution, going to the real issues before us. I'm particularly pleased that, as well as expressing her deep concern for these issues, she gave voice to the concerns of her constituents, including those who have been in direct engagement with persons in immigration detention. I was struck and moved when she asked the question—rhetorically, I think—'Why would we make it so hard?' That is the nub of the debate going to the provisions in this bill. There are, I believe, some significant issues that we do need to address in relation to the management of immigration detention in Australia, particularly also outside of Australia. But why would we make it so hard?

I have spent some time in immigration detention facilities before and since being elected to this place. As a lawyer I have represented detainees, so I have some personal experience of the challenges of those in these centres communicating with those whom they need to speak with, like their lawyers; and I have, I hope, some appreciation of those challenges going to those whom they would prefer to be in contact with rather than their lawyers—their friends and their loved ones. So the rights that this bill would trammel aren't mere abstractions for me, as clearly is also the case for the member for Indi, and they shouldn't be for any of us.

Let us think, as we debate this bill, about the lives of those in immigration detention. Let us also think about the values that should animate the principal governing party, which I believe is still called the Liberal Party, which professes a concern for the individual and a belief in the rights of the individual. Yet, in this bill, just as in respect of the legislation dealing with the extension of the cashless welfare card, this government seems determined to treat people in very broad categories, without having regard for their individual circumstances. When it comes to the people in immigration detention, it is all well and good for the minister and government members to talk about the different nature of the cohort today. That is a significant consideration, but it is no warrant for the blanket application of wide-ranging coercive powers and restrictive provisions to classes of people without any consideration of their individual circumstances, much less their individual needs.

We have before us a bill which would amend the Migration Act to grant the minister the power, by legislative instrument, to declare certain items prohibited in detention centre facilities. It would also amend existing search and seizure powers in relation to these centres, including—and this is concerning—the use of dogs for the screening of people detained at centres, and visitors, as well as provide some new, statutory search powers. There are also some powers for screening visitors.

These are significant changes that deserve careful attention, in context. Part of that context is the broad Labor approach to this issue. Our attitude to this bill is that we accept that there are matters that require attention and some change to practice. We're up for a proper look at these issues—in this regard I will go through the recommendations by the Labor senators shortly—but, to do so, we must start again. This is no basis for dealing with the issues the government says it is interested in dealing with. In particular, we can't proceed without adequate information and advice from the department, or indeed without any information from the contractors who are responsible for so much which is at issue here. What we have is an approach by the government that would deprive a number of human beings of very limited, existing agency the use of mobile phones, in particular, to speak with family, legal representatives and support networks; and the ability to store and manage their own medication.

I'm also deeply concerned, like my colleagues, about the extension of search powers beyond reasonable cause. This is a step that we should not be taking lightly. When I think about this, I think about something extraordinary in the review process. I was very pleased to have been here while the member for Cowan detailed what the evidence that was submitted to the various Senate inquiries showed. There was not only the overwhelming body of concern and an indication to the government that it should pause and reflect and not proceed down this path but also, beyond that, something that I found quite extraordinary: Senator Macdonald was the author of recommendations which highlighted key human rights failures in that bill. Senator Macdonald is not known as a staunch advocate for the human rights of individuals, particularly those in these circumstance. I think that shows the extraordinary overreach that is contained in this bill—the extraordinary and uncheckable powers that would be provided to the Minister for Home Affairs if this bill were passed. That raises not only questions about the practical application of the provisions contained in this bill to those individuals in detention but also some troubling questions of principle which have been very effectively highlighted through the Senate committee process and brought into very clear relief by the very forceful submission provided by the Law Council of Australia. This is a submission that government members should pay very careful regard to.

Of the many rights affected here, I think the right to privacy would be very considerably affected by these provisions. We're talking about a cohort of people, many of whom have experienced significant trauma and, often, unimaginable loss, yet the government would put these people in the position where the only way of dealing with advancing their legal interests, as they are entitled to do, would be through a public phone, in full hearing of anyone else. After everything that such a person has gone through, surely the least we can do is provide some privacy and, of course, also recognise their unalienable right to autonomy.

Fundamentally, when we look at the breadth of our concerns, everything comes down to a couple of points. The first is accepting that some elements in the narrative of the government appear to warrant changes to enable the appropriate operation of these facilities to the extent that they are necessary. But there are huge issues with the manner in which powers are to be granted, going beyond the question of those particular powers. This is triply so—I think we've got to the double already—when we don't have adequate evidence from the department, or the contractors to the department, about the impact on practice. So we have this issue of principle, we have this impact on practice, we have the human rights of a group of vulnerable people and we have no meaningful answer from the government that deals with these questions. The government has not provided a compelling rationale to support the broad thrust of the provisions in this legislation and, in particular, has provided no basis to support the manner in which these additional requirements have been imposed.

We remember, unlike some in this debate, that immigration detention, regardless of the cohort composition, is not a prison. It cannot be talked of like prison. So, when we talk about changes in the cohort, let us remember that the individuals within this system should be treated as individuals, having regard to their individual circumstances and, of course, their individual rights. We should have regard to the breadth of evidence that has been provided—the 80 submissions the member for Cowan referred to—which highlighted the fundamental failings in the approach of the government to this difficult issue.

I refer all government members—and I note that few have participated in this debate here—to the submission of the Australian Human Rights Commission. I refer also to the Law Council's submission, which forms the basis of the seven recommendations that Labor senators made—the last one demonstrating our willingness to engage with the government to resolve any real issues that require legislative attention. What we have fundamentally said beyond that commitment to work through these issues in a bipartisan manner is the need to step through the fundamental failings that the Law Council have identified.

Our amendments, in large part, pick up those recommendations. Firstly, we say that we should be narrowing the definition of a prohibited thing and that this should be defined in statute rather than left to the whim of the minister of the day. It's the appropriate general course for issues of this nature, and there has been no warrant for a departure in this case—and it would be difficult to see why that would be the case. It should be a matter for legislation. It should not be something that is beyond our scrutiny when we are talking about a vulnerable cohort.

We also pick up, and urge government members to consider, the second recommendation. This goes to the issue of the autonomy that is provided for by accessing a mobile phone and similar devices, except in circumstances where removal has been demonstrated to be necessary and proportionate. This is a matter that was also picked up by the Australian Human Rights Commission and the Kaldor Centre, who made a very strong submission that touches on significant constitutional questions in terms of the implied right of political communication. This should be more effectively addressed by the government and provides yet more reason for the government to go back and start making the case again. But certainly, in making the case, it should be that people in immigration detention have adequate opportunities to communicate with people outside of detention, whether for the purposes of obtaining legal advice or simply to maintain the bonds of human contact that the member for Indi spoke so effectively about in her speech.

We also urge government members to look at the third recommendation of the Law Council of Australia. This is a simple one. I can't imagine why it is controversial. It says to ensure that medications obtained under prescription, and related supplements that are recommended, are not caught by the provision, and that these provisions are directed at, as appropriate, restricted substances only. Recommendation 4 of the Law Council of Australia is to limit searches of personal effects and rooms to cases where there is a reasonable suspicion of the possession of contraband. Recommendation 5 deals with a similar issue; it's about clarifying the basis upon which invasions of privacy could take place. Lastly, in terms of the Law Council recommendations, we recommend the bill be amended to ensure that detector dogs are able to be used, but not on detainees. Other speakers have detailed the trauma that has been occasioned by this.

So I say to government members: have regard to principle and have regard to the evidence, and do not proceed with this bill until these matters are attended to.

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