Sharon Claydon (Newcastle, Australian Labor Party) Share this | Hansard source

I rise to share my concerns also with regard to the Migration Amendment (Prohibiting Items in Immigration Detention Facilities) Bill 2017. This bill, of course, purports to make detention centres safer, and, while Labor will always consider reasonable and proportionate proposals to improve safety and security in these centres, the government has fundamentally failed to make the case for this legislation. It compromises human rights, it creates harsh new search and seizure measures and it gives the minister unchecked power. It also continues this government's very concerning pattern of harsh, punitive policies against asylum seekers.

Since coming to power, those opposite have taken every opportunity to eliminate any remaining vestiges of compassion from this very sensitive policy area. I think it is a grave error to mistake compassion with some kind of sense that this is going soft on border control, which is the kind of rhetoric we've grown very used to, to be honest. And I've got no doubt that the minister and some members opposite might well try to distort contributions from this side of the House as some sign that, if you dare express compassion in a debate, that's somehow a sign of weakness. It's a very, very narrow-mindedly focused person who asserts that cruelty is somehow tantamount to being kind in the long run and compassion is somehow tantamount to being soft on security issues. I think that's a very limited and unhelpful debate that occurs very often in this House and, indeed, outside.

Certainly, there are many examples as to why Labor would be concerned about allowing unchecked powers to the minister, and I'll come to that again later in the debate. The government's record in terms of its mismanagement of offshore facilities—facilities, I might stress, that were designed to be regional transit processing centres but have instead become horrific places of indefinite detention. That is my definition of cruelty—when you indefinitely detain people in these centres. There have also been attempts to deprive asylum seekers of dignity and to intentionally delay processing.

The government has re-implemented Howard-era temporary protection visas, which only serve to keep people stuck in a permanent state of limbo. They've tried to stop asylum seekers from telling their stories, refused to answer questions and have shut journalists out of detention centres. They've rejected New Zealand's compassionate offer to provide a home to 150 refugees—an offer which, I note, was first made by the conservative New Zealand government. They've failed to respond to the Senate inquiry into the distressing reports of abuse, self-harm and neglect in both Nauru and Manus Island, and they've used every means at their disposal to dodge scrutiny and avoid accountability. They've completely abrogated their responsibility to find third party resettlement options for the remaining asylum seekers and they've engaged in a puerile campaign of dog whistling to whip up fear and anxiety in the community.

While this bill pretends to have safety and security at its very heart, closer examination suggests it's little more than an unwarranted attempt by this government to further punish vulnerable people and choke their channels of communication. This legislation allows the minister to define specific items as prohibited in detention centres through a legislative instrument. It comes on the back of last year's failed attempt by the Turnbull government to ban mobile phones in detention centres—a bid that was overturned by the Federal Court when it found that detention centre staff had no authority to confiscate mobile phones. This bill would also increase immigration officers' search and seizure powers within these facilities, and allow both strip searches and the use of dogs on detainees and visitors. It also indirectly empowers authorised officers to use force when conducting a search.

While the prohibited items that this legislation will create aren't defined in the explanatory memorandum, that memorandum says those prohibited items might include things like mobile phones, SIM cards, computers, medications and healthcare supplements, and offensive publications. The government argue that these things pose a larger risk to safety and security because of 'an increasing number of higher risk detainees', but they simply haven't made the case for this—especially since the new, harsher regime will, in fact, apply to all detainees. Thus, it unfairly penalises the many asylum seekers who have committed no crime whatsoever. Not only that, but, because these ministerial decisions wouldn't be disallowable, the normal opportunity for this parliament to object to and overturn any inappropriate regulations won't be available.

It's clear that the impact on detainees of having access to communication devices revoked would be severe. In these detention centres, a mobile phone isn't just a means of communication; it's really a lifeline to the world beyond the detention centre. It's a lifeline from a world that is incredibly traumatic and destabilised so much of the time. Detainees rely on mobile phones to stay in touch with their friends and families; they also need them to maintain contact with their lawyers. Removing them would significantly add to the stress and the mental and emotional harm they are already suffering in detention.

Labor is also very concerned about prohibiting medications or health supplements. We want to see strong protections here to ensure critical prescribed medications or supplements recommended by health practitioners are not included in this prohibited items list. While Labor will always consider reasonable measures to improve safety and security, we believe those prohibitions are totally unwarranted.

We also hold grave concerns about giving the minister broad, unchecked powers to declare pretty much anything he chooses to be banned while removing this parliament's critical right of review. Why should we trust this government and this minister when they have demonstrated time and time again utter incompetence in the management of our detention centres, and a callous disregard for the wellbeing and dignity of those people who are in them? This is a minister who has a record of campaigning relentlessly—and, we can see, quite successfully—to expand his own powers. He is quite content with running a continuous commentary on judicial decisions and practices. Most conservatives would normally respect the separation of powers that exist between judiciary and parliament, but not this minister. No, this is a minister who has built himself a mega-department in which to exercise these new, expanded powers. He's proven time and time again that he simply shouldn't be trusted with the expansion of unfettered power.

At best, this bill is poorly drafted. It is rushed and there are a raft of unintended consequences. At worst, this bill is an active attempt to deprive vulnerable asylum seekers of their human rights, while dodging parliamentary oversight. Labor referred this bill to the Senate for a thorough inquiry. There were around 82 submissions and more than 170 form letters received from around the country. They were nearly unanimous in having serious concerns about fundamental aspects of this bill, and the vast majority recommended it not be passed. Submitters to the inquiry shared their profound unease about the broad powers this bill bestows on the minister. They were deeply concerned that the minister could decree absolutely any item to be prohibited and that there would be no way for the parliament to object to or overrule these decisions.

Similar concerns were raised by the Scrutiny of Bills Committee, which is responsible for assessing proposed legislation against a set of standards regarding individual rights, liberties and obligations, the rule of law and, indeed, parliamentary scrutiny. In its Scrutiny Digest, the committee questioned 'the appropriateness of allowing significant policy matters to be dealt with by delegated legislation'. I must say I share these concerns. I'd also like to know why the minister isn't willing to be up-front about what it is he wants to prohibit. We've heard reports about items like pens and paper already being banned in the detention centres. Who's to say that these things won't be added to the list of prohibited items after the bill has passed the parliament? I'm persuaded that the measures required by this bill are utterly disproportionate to the demonstrated risk.

In its submission, Amnesty International noted that the High Court had found that mandatory detention of asylum seekers cannot be punitive. This bill, which imposes harsh restrictions on all detainees, demonstrably is punitive. It's important to remember that detention centres are not correctional facilities, and they should not be treated as such. As the Refugee Council of Australia points out, the bill applies 'the same set of restrictive policies to all people in detention, irrespective of their past history, risk rating and vulnerability, to mitigate the risk presented by some'. The Australian Human Rights Commission agrees that blanket decisions are inappropriate, saying that 'restrictions should only be imposed in individual cases in response to individual risk assessments'.

The Scrutiny of Bills Committee also had something to say on this. It said that the proposed amendments in the bill would apply to all immigration detainees equally, despite the fact that around half the detention population are not high-risk individuals. The committee's report found that the bill 'unduly trespasses on personal rights and liberties'. Notably absent in the inquiry were submissions supporting the government's position from the companies who actually run these detention facilities. Neither Serco nor IHMS chose to take the opportunity to make the case for why this increase in powers is necessary for good order within their facilities.

And it isn't just the Scrutiny of Bills Committee which has concerns about the impacts of the bill on the dignity and human rights of detainees. On this matter, Australian Lawyers for Human Rights wrote:

By introducing dog searches, warrantless searches and possibly depriving interns of mobile phones and medication, the bill allows the further traumatising and terrorising of innocent men, women and children. The behaviour which would be permitted under this legislation, apparently with no judicial oversight, is akin to the torture of innocent people.

That is the Australian Lawyers for Human Rights' assessment. The removal of mobile phones is also of particular concern to the Australian Human Rights Commission, which submitted that 'prohibiting the possession of mobile phones engages and limits a range of human rights', including those relating to privacy, freedom of expression and association, and protection of the family. The Parliamentary Joint Committee on Human Rights also saw the expanded search and seizure powers as being in conflict with the right to freedom from torture and from cruel, inhumane or degrading treatment or punishment, and the right to humane treatment in detention.

In summary, this is plagued with deeply worrying issues which must be rectified. Labor shares the concerns raised by the Parliamentary Joint Committee on Human Rights, the Scrutiny of Bills Committee and the hundreds of people who wrote submissions to the Senate inquiry. I won't support a bill that offers unchecked ministerial powers and removes parliamentary oversight. This bill can't come at the expense of due process or the humane treatment of asylum seekers.

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