Kylea Tink (North Sydney, Independent) Share this | Hansard source

I thank the honourable member for Barker for allowing me time to get to the chamber; it is very kind of you. I stand to oppose the Migration Amendment (Prohibiting Items in Immigration Detention Facilities) Bill 2024, which gives the minister the power to declare an item a prohibited item, introduces sniffer dogs into detention facilities and creates Australian-made Guantanamo Bay-esque detention camps. From the outset, it is worth pointing out that this is not a new bill; rather, it is a rerun of the Morrison government's proposal to ban immigration detainees from accessing mobile phones, and is indicative of an appalling race to the bottom. This is the fourth time this bill has been produced since 2017, when the then immigration minister Peter Dutton introduced it on behalf of the coalition government. It was then reintroduced in 2019 and again in 2020 yet each time it has failed to pass the House due to a lack of support, including from the then opposition, the Labor Party. While many have feared that Labor has been inching closer to the coalition on immigration policy, the introduction of this legislation shows they are not even trying to hide that fact anymore, moving what is essentially a cut-and-paste of Peter Dutton's previously failed migration strategy.

The bill amends the Migration Act to allow the minister to determine that an item is a prohibited thing in relation to immigration detention facilities or persons in detention. These broad and discretionary powers would allow the minister to determine any item, from a mobile phone to a SIM card to a stuffed toy, as a prohibit item if the minister was satisfied that it would pose a risk to the health, safety or security of a person in a facility or the order a facility. For example, there may come a day when the minister decides reading glasses should be prohibited, as this item could potentially be used to make some sort of weapon, even without proof there was ever an intention of the owner to do so. They might decide to confiscate shoelaces or they might decide to confiscate medicines. Scarily, all of these things were routinely confiscated back in 2014, but, thanks to the diligence of many working in the human rights space, these gross abuses were identified and the system was shamed into compassion.

While the government now argues Border Force needs these powers, the truth is we already have laws and policies to deal with the issues the government seeks to address via this bill. These include extensive search and seizure powers under the Migration Act, common law duty of care to ensure the safety of people detained, and the ability of police to investigate any suspected illegal activity. In this context, I would argue law enforcement officers are the most appropriate executers as of these powers and it is not appropriate to delegate them to those working in and around detention facilities. Detention offices can and do work with police when incidents arise because it is rightly the role of police to investigate suspected misconduct, not Border Force, not employees of the private company Serco and not those employed by the Department of Foreign Affairs and Trade.

From a human rights perspective, this legislation also sets a dangerous precedent that ultimately could be applied elsewhere in society in the future, and, while this government may say this is an absurd statement, history is littered with societies that have initially made a law to support an exception to the rule, only to find in future years that the exception slips and it is applied to everyone. The bill also strengthens the powers to search for, screen, seize and retain prohibited and controlled items without a warrant and will allow for searches within centres, including the use of detector dogs to search the premises. While the government claim they've safeguarded the interests of detainees by making minor changes to the 2020 version of this bill, these changes are indeed minor and do not address the key concerns raised earlier.

Specifically the bill inserts three new sections to the Morrison government's 2020 version: sections 251AA, 251AB and 251AC, plus some minor legislative notes. These changes include a requirement that an authorised officer search for, screen for or seize a prohibited thing only if the officer believes on reasonable grounds that such a search or seizure is necessary. Yet this is an extremely broad test, which will be easily met and may be applied to everyone currently held in detention regardless of whether they have a prior criminal record or not, essentially applying a general threat of punitive measures to all.

The bill does provide for access to an alternative means of communication when a communications device is seized, but the safeguard leaves detainees at the mercy of their guards and facilities when it comes to contacting loved ones, supporting people, legal advisers and the world in general. Additionally it isn't clear what this alternative means of communication would even entail. For instance the bill states:

The alternative means of communication must reasonably be sufficient to enable the detainee to:

(a) communicate with a member of the family unit of the detainee; or

(b) communicate with any person outside the immigration detention facility for the purposes of:

…   …   …

(ii) obtaining support of a prescribed kind; or

(iii) communicating governmental or committed matters.

Does this mean a communications device that enables an asylum seeker to communicate with just one member of their family will be provided but not one that enables them to contact their support team or communicate with a lawyer, a government contact or a journalist? It would seem so.

Ultimately little has changed since the 2020 version of this bill. Back then many now in the current government spoke against the bill. I thank them for that, as many of the points they raised are still valid and have not been addressed in this iteration. Indeed the member for Macnamara, the current Chair of the Parliamentary Joint Committee on Human Rights, said in 2020 that the bill was 'not about a proportionate response from government but about cruelty and politics', while the member for Moreton said:

It is my view that a 'prohibited thing' should be defined in the legislation and brought before the parliament rather than snuck in via regulation.

I could not agree more with his assertion at that time. The member then went on to say:

… the fact that they've brought a bill before the parliament that includes such outrageously nebulous and sweeping powers is proof that the current and former ministers can't effectively manage those in their care.

Meanwhile the member for Scullin said there was 'no justification for blanket prohibitions'. He said:

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 member for Cooper said:

Labor unequivocally do not support phones being removed from detainees who have done nothing wrong.

This bill, then, does not address these issues, as mobile phones can still be removed from detainees who have done nothing wrong, the minister is again using the changed composition of the cohort of people in immigration detention as a justification for an across-the-board approach, a prohibited thing is still not defined in this legislation and it would seem that this proposal is still fundamentally about politics.

In his second reading speech, the minister said:

This bill responds to calls for action from the Australian Border Force, as well as external parties including the Australian Human Rights Commission.

Yet this assertion is at the very least cheeky in that he is referring to the Human Rights Commission's report into conditions at a particular facility, the Yongah Hill Immigration Detention Centre. While the Human Rights Commission report did raise serious concerns over safety and care at Yongah Hill, it clearly stated that these concerns will not be resolved solely through tighter security measures. Rather the Human Rights Commissioner, Lorraine Finlay, who attended the facility and conducted the report, gave a far more nuanced assessment of the situation. She said:

The cohort of people entering immigration detention has changed significantly over the years. Drug infiltration and substance misuse is a multi-faceted and complex issue, one which cannot simply be resolved through tighter security measures. Access to essential health services, rehabilitation and meaningful activity must be urgently addressed.

That report then went on to make 33 recommendations to the Department of Home Affairs, of which the department accepted or partially agreed to 20 and disagreed with seven, with the remaining six requiring government consideration. The report also recommended that the government replace the current system of mandatory immigration detention with a case-by-case assessment process that takes individual circumstances into consideration. The government didn't accept that recommendation, instead noting that it requires government consideration and stating that assessments are already completed as fast as possible to 'facilitate the shortest possible timeframe for detaining people in immigration detention facilities'. If this is the case, why is the average time spent in immigration detention in Australia 565 days, compared to 49 days in the United States of America and 16 days in Canada?

To the commission's recommendation that the department review its operational instructions to focus on reducing the adverse impact on privacy and dignity of people subject to searches, the government responded that they had already address that recommendation. Similarly, to the recommendation that the department increase the provision of counselling and rehabilitation services and education to minimise harm and reduce demand for alcohol and other drugs, the department said that they had already addressed that recommendation. To the recommendation that the department review its policy on access to recognised programs of study or vocational training, with a view to enhancing opportunities for rehabilitation and reintegration, the department disagreed with the recommendation.

For the Minister for Immigration and Multicultural Affairs to stand in this place and say that he's introducing this piece of punitive legislation in part as a response to calls from the Human Rights Commission is a selective appropriation of a very small part of what could have been a landmark report, had the government chosen to listen to and act on all of the recommendations. Ultimately, in relation to search powers, the Human Rights Commission was clear. They said:

The Government should reform the search powers available to detention centre staff to allow for targeted personal searches and room searches to be conducted where there is reasonable suspicion that drugs are being concealed.

The recommendation was really clear. It was to identify the concealment of drugs, not to remove mobile phones.

They go on to reiterate that, should enhanced search powers be made available to centre staff, any use of these powers should be adequately reported and periodically reviewed to identify and rectify any systemic improvements to the use of force in immigration detention. They then specifically state that the recommendation to reform search powers will not lead to any meaningful increase in safety without there being a more significant investment in engaging more people in detention in drug and alcohol counselling, harm minimisation, access to treatment and rehabilitation, and further education to highlight and discourage risky behaviours associated with drug use.

Ultimately, they argued that it would be these investments that would have greater benefits for the behavioural management of the whole centre, rather than enhanced search powers or drug prevalence testing. Yet, conveniently, the government doesn't seem to have read that part. Instead, we have a repackaged Morrison-era migration policy that aims to remove one of the only lifelines for people in immigration detention to communicate with family, friends and the outside world.

You can't help but wonder if there's a larger agenda here, particularly as mobile phones have been instrumental in documenting abuse and safety concerns within the detention centres and have given a voice to those living in these facilities. Removing them risks oppressing a detainee's ability to talk to journalists and advocates about the conditions in these facilities. For example, Behrouz Boochani, who spent seven years in immigration detention on Manus Island, used a mobile phone to document his experience, He said that mobile phones were a lifeline for detainees to communicate with family and lawyers. Similarly, the Biloela family used mobile phones when they were deported late at night to contact supporters and journalists, who in turn contacted lawyers, leading to an emergency injunction that saw their plane turned back midflight.

There are many other uses of mobile phones in detention facilities, from corresponding with legal professionals to learning English, accessing personal photographs, accessing medical advice, viewing entertainment or exercise routines, and reading the news. Cutting people off would only make an already inhumane system even crueller. Ultimately, having advocated in this area now for almost a decade, I have to believe that, as a nation and a community, we are better than this. Our government should be creating laws that ensure those in immigration detention are treated with dignity, are processed in a timely manner and do not suffer in dangerous environments. The first step should be the implementation of all the Human Rights Commission's recommendations on reforming immigration detention. The second step should be a royal commission into our treatment of asylum seekers.

Rather than engaging in a race to the bottom on immigration, I call on this government to implement positive reforms that end the cruelty and human rights violations that have characterised Australia's detention regime since the 1990s. With just one week left in parliament, this is the second bill that this government is seeking to rush through that will limit people's human rights, and this bill will not make people living in detention, or detention centres themselves, safer. It will, however, make an already cruel system even crueller.

I wouldn't have supported this bill when it was introduced by the Morrison government in 2020, and I will not support this version moved by the Albanese government. I say to this government: people expected better of you.

See this speech in context