Helen Haines (Indi, Independent) Share this | Hansard source

This bill, the Migration Amendment (Prohibiting Items in Immigration Detention Facilities) Bill 2024, seeks to resurrect a bill introduced by the previous coalition government. I make note of the words of the member for North Sydney and her detailed analysis of what we were presented with this morning when we had an eight o'clock briefing about this piece of legislation.

The bill seeks to allow the minister to determine, via a disallowable instrument, that an item is a 'prohibited thing' in relation to immigration detention facilities if the minister is satisfied that the thing is 'unlawful to possess' or if the thing would pose 'a risk to the health, safety or security' of a person in a facility, or 'the order of a facility'. The bill also strengthens Australian Border Force powers to search for, screen, seize and retain prohibited items when they believe, on reasonable grounds, that such search and seizure powers are necessary to prevent or lessen the risk to the health, safety or security of people in detention. This includes allowing Border Force officials to use detector dogs in searches.

What does this bill do? The bill effectively gives the minister broad and discretionary powers to list things like phones and SIM cards as prohibited items. Secondly, it gives Australian Border Force officials working in detention centres powers to search for and seize these items from detainees if they reasonably believe it's necessary to prevent a risk to the safety of other people in detention, both detainees and workers.

If this bill sounds familiar, it's because we have seen it before—not from a Labor government but from the former coalition Morrison government. Indeed, it was debated in 2020. I opposed that very similar bill then in 2020, and I oppose the bill before us today for similar reasons, which I'll address shortly. But before I do that, I want to note that in 2020 Labor opposed the bill. So why, you are likely wondering, are they now supporting it? Why the change of heart?

The minister is at pains to say that this bill is now necessary because the cohort in detention has shifted away from asylum seekers towards people who've had their visas cancelled on character grounds, many of whom have serious criminal histories. The government says that about 90 per cent of those in detention have a criminal history including a history of violent and drug related crimes. They say that these people are creating a prisonlike culture in immigration detention including a notable increase in drug trafficking and substance misuse, and regular threats of violence against other detainees. The Australian Border Force says that people in detention have been using encrypted messaging services to run organised criminal activities and that they've gone to the minister multiple times, apparently, to be given expanded powers to respond to this activity including powers to seize people's phones.

The government say they've changed the coalitions previous bill to ensure that there are appropriate safeguards to allow detainees to access alternative means of communication when their mobile phones have been seized. This was the major reason they voted against the bill, and they say this concern has now been addressed in the bill before us. I understand that there should be measures to prevent drug trafficking and other criminal activity in detention—of course I do. Both detainees and those working in detention should be safe. Of course they should. But I have serious concerns about this bill presented to us today.

Firstly, I am deeply concerned about the speed in which this government has rushed through this legislation. When I'm deciding whether to oppose or support a bill I ask, 'Is it good governance?' Good governance means good process. It means proper time for scrutiny, for consultation and even for negotiation. In the last sitting fortnight of the year the government have introduced the bill and have allowed one day of parliamentary debate. I only received a half-hour briefing from the minister this morning on the bill. It's not gone through the Senate inquiry, and I haven't had the time to consult with legal experts—including human rights experts, and refugee and asylum seeker lawyers—to determine exactly what this new bill does and to determine its impact on those in immigration detention. I need to know what the impacts of the bill are that I'm required to vote on. I can't support a bill where the government has not allowed adequate scrutiny for me to understand this.

Secondly, I hold substantial worries about the broad and discretionary ministerial powers created under this bill. New section 251A of the bill, which allows the minister to determine a prohibited thing, is a very broad power. It means the minister could, and will, determine that mobile phone SIM cards and internet-capable devices are prohibited items. These items are lifelines for people held in immigration detention. They allow people to contact their families, to have access to lawyers and to have access to the media, not just for support but to uncover what conditions are like in these facilities. Giving the minister powers to prevent this access appears to me to be ministerial overreach.

I quote Behrouz Boochani here, who spent seven years in immigration detention in Manus Island—the magnificent author, multi-award-winning journalist and filmmaker, who wrote the incredible No Friend But the Mountains. If it were not for that phone, we would never have heard his voice. He used his phone to document his experience in many ways. One thing he said was that a phone allows people 'to communicate with their families, to be in touch with friends and also have access to lawyers'. He says: 'I used my phone to write about the system, to expose the system.' This incredible man wrote poetry in there. One extraordinary article he wrote was about the murder of his friend Reza Barati and the poem that he wrote for Reza on his phone, 'Our Mothers, a poem for Reza'. This is a man who won the Victorian Premier's prize for literature and so many other awards. There will be no more Behrouz Boochanis in our detention centres under this law.

This bill risks greatly curtailing this right to access the outside world, and I am deeply concerned about it. I had the great honour of meeting with Behrouz Boochani, here, in this parliament—extraordinary, really. The irony of meeting him here, in February a couple of years ago, was not lost on me. What a powerful voice—a voice that would be silenced by this bill.

The government says the bill has adequate safeguards in place to ensure a detainee's right to communicate freely continues to be met. These include ensuring alternative means of communication are provided, where a phone has been confiscated, and ensuring that a phone can only be confiscated if an officer believes 'on reasonable grounds' that such search or seizure is necessary to prevent a risk to the health, safety or security of people in detention, or to the 'good order' of the facility—whatever that is defined as.

I have two problems with these safeguards. First, we simply don't know what alternative means of communication will be provided. Are we talking about a landline, a fax? Likely, yes—hardly the equivalent of mobile phones and the internet, which are incredibly important accountability tools for sharing information, videos and photos about the poor conditions and mistreatment in detention. And we know there's mistreatment. The safeguards in this bill are simply not sufficient to ensure that this accountability can happen in the future.

Second, I'm concerned about what 'good order' of the facility means. I understand it's not defined in legislation. I'm again concerned that this could result in an overreach of the powers because it gives the minister and officers significant discretion to determine what constitutes 'order' and to either list an item as prohibited or exercise search and seizure powers. It could mean that detainees' phones are confiscated to prevent riots or other forms of unrest that we know happen when conditions deteriorate and people feel completely powerless to have their voices heard. Rather than improving these conditions, the powers under this bill could just make these conditions worse.

The third reason I oppose this bill is because, put simply, immigration detention is not prison. I quote barrister and Western Sydney university immigration law lecturer Dr Jason Donnelly, who says:

Detention centres are for an administrative function, they are not prisons and if they are indeed a risk and if there's evidence they've committed a criminal offence then they'd be dealt with through Australia's criminal legal system.

I understand that police retain their powers to search for and seize items like phones and drugs that might put the safety of those in detention at risk. These powers already exist. We should not need to give them to border officers too.

Here I quote, just as the member for Sydney did, what some Labor members said in 2020 about this bill, or a very similar bill—when they spoke against, essentially, the same bill. The member for Makin said, at the time—and I was here:

Most of the things that the government wants to ban or confiscate are already illegal … and, as such, would be covered by existing state or federal laws.

He went on to say:

If phones are being used for criminal activity, I believe that authorities would already have the ability to confiscate them.

I ask members of the government now: what is different? Why does this statement from a member of your own government no longer seem to apply? It's another way this government seems to be competing with the opposition in their efforts to be the most hardline when it comes to immigration detention, to continue the race to the bottom on immigration.

The fourth reason I oppose the bill is the blanket nature in which it operates. Again, I'll quote a Labor member from 2020 when they opposed a similar bill. The member for Scullin, now the Minister for Skills and Training, 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 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.

He should be giving a speech today—exactly the same thing applies. Again, I ask the government, including the Minister for Skills and Training: what is so different now to make your government not just support but also introduce such a bill? The minister for immigration in his second reading speech said that this bill is so urgent now because of the change to the cohort of people in immigration detention. That's exactly what the coalition said in 2020, and Labor rightly called them out on it. To just take up this same argument four years later is, frankly, hypocritical.

Finally, I want to raise concerns about the government's utter failure to address the conditions in immigration detention, beyond the punitive measures in this bill. In his second reading speech, the minister said that this bill gives effect to one of the recommendations—one—of the Australian Human Rights Commission's report into the Yongah Hill Immigration Detention Centre near Perth. That report flagged serious concerns over safety and care at that immigration detention centre and made a recommendation to expand the search powers of staff. The government helpfully used that AHRC report to justify this bill, but what they failed to do is address any of the other 32 recommendations in the report. Recommendations included replacing the current system of mandatory detention completely and ensuring detention is used only as a last resort. Another one said that the department should increase the provision of counselling, rehabilitation services and education to minimise harm and reduce demand for alcohol and other drugs within the detained population at the centre. Another one was that the department should improve health services, including referrals and screening for mental health and cognitive disability, and there were many more. But, when asked this morning what the status of all these other recommendations made by the Human Rights Commission is, the minister responded that he didn't know. To me, this goes to show that this government is not taking a humane human rights approach to those in immigration detention. Instead, it is continuing punitive measures in a place that is not a prison.

I want to finish by quoting my own 2020 speech on the very similar bill introduced by the then coalition government. I can't believe I'm saying it again, but here I am. I said then:

I rise to express deep and sincere concerns about the Migration Amendment (Prohibiting Items in Immigration Detention Facilities) Bill 2020, the lack of evidence upon which it stands and the disturbing signal it sends about our collective values. I stand to give voice to the people from my electorate of Indi who have implored me to speak in this place about bills such as this. More than that, though, I stand to give voice to the very people who are rendered voiceless by bills such as this, bills which seek to take away not just a phone but what last shred of connection they have to a world outside the darkness they find themselves in.

I stand by those words today, just as I stood by those words then. I am deeply, deeply troubled by this legislation and deeply disappointed in this government for bringing it to the House in the manner in which it has.

See this speech in context