Anne Aly (Cowan, Australian Labor Party) Share this | Link to 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.

Cathy McGowan (Indi, Independent) Share this | Link to this | Hansard source

Colleagues, I rise today to speak against the Migration Amendment (Prohibiting Items in Immigration Detention Facilities) Bill 2017. I think it's poor law. My constituents have written to me asking me to speak against it. And, on a personal note, I think—as the member for Cowan has said—it's disproportionate. In fact, I'd go so far as to say it's cruel. I ask the government and my colleagues on the government side and in the Senate to really reconsider their support for this legislation, for three reasons: it's poor law; it goes far too far; and it won't achieve its results.

As the member for Cowan so well outlined, the Senate Legal and Constitutional Affairs Legislation Committee has done a report. I won't repeat the recommendations that you've so clearly outlined, Member for Cowan. As you remember, the Law Council of Australia has made some very clear recommendations, so I won't cover that ground.

What I'd like to do today is bring the voice of my constituents to parliament. These are people who have visited the immigration centres and have written to me about this, so this is the voice of real people in real time. The major problems that they have with this proposed legislation are the banning of mobile phones and the ridiculous suggestion that we revert to landlines; the blanket treatment of all detainees as criminals, when the minister himself says that 25 per cent of the people in the whole detention centre are there as noncriminals; the excessive power it gives the minister, as outlined; the use of detector dogs, which is so, so distasteful; and the subtlety of changing the names of the transition accommodation centres. We're now going to call them all 'immigration detention facilities'. I think it's from that name alone that we get a sense of what the government is trying to do here.

It gives me great pleasure to bring the voices of two of my constituents to parliament. One is an individual, Freida Andrews, who's a regular visitor to the detention centres. The other one is Rural Australians for Refugees, who made a submission to the inquiry. I'd like to put on record why they think this legislation is particularly onerous. Freida writes to me: 'Cathy, I'm writing to advise you of changes that have occurred to visiting regulations and procedures at the detention centre at the Melbourne Immigration Transit Accommodation, MITA, in Broadmeadows. I have been visiting detainees in MITA since 2005 and have continued to remain in contact with them, both those who remain in detention and several who are now on community detention.' So she's got real skin in the game.

She outlines some of the areas where she's got particular concerns. One is movement of detainees. She says that all outside activities were stopped. Accommodation was segregated into separate units for men, women and families. Detainees were not permitted to mix with each other without making an application in writing. This meant that the only time they were able to mix with others held in other accommodation units was in visitors rooms. And, if they were required to attend outside appointments, these people, with no criminal charge, no sense of anything wrong other than seeking asylum, were accompanied by guards—and video surveillance and handcuffs were also used—to monitor them.

Freida also talks about visiting regulations. She's a visitor from north-east Victoria who travels to Melbourne to visit these detainees. She says, 'Applications to visit continue to be accepted by phone or email.' However, the number of detainees that could be visited has been significantly reduced. Session times were changed, with the first one being brought forward to 1.30 pm. Freida says, 'This presented some difficulties for me in terms of coordinating train and bus travel, particularly as the rule was that, if you arrived more than 30 minutes late, you were refused entry.' Everybody who uses public transport in north-east Victoria knows about our abominable public transport system and how it's more frequent than not that the train is late. No exemptions were permitted. 'This also applies to detainees,' Freida tells me. 'If they were not in the visitors room within the first 30 minutes of the visiting session, they were and are refused entry.' Only food that was to be consumed in the visitor's room was permitted.

She talks about gifts to detainees, and it is a common practice in rural and regional Australia that, when we visit people, we take gifts. Traditionally gifts from my community have been gifts of food—fresh food, well grown in our gardens. Freida says: 'Regulations in regard to food were again heightened in October 2017 and still apply. Food that can be taken in is limited to that which is commercially packaged, labelled, factory sealed and has a visible expiry date.' So no fresh food at all—what is that saying? That we farmers don't grow good food? That we won't accept good food? I had the opportunity to talk to the minister about this last night and he said, 'Look, we do it for security reasons.' That just points out to me that, in terms of security reasons, we're just going so overboard. Surely fresh food can be checked if it needs to be. It doesn't have to be wrapped up, and we certainly don't want to take in packaged food.

Freida also said the opportunity to leave a gift for a detainee became extremely difficult. This could have been clothing or shoes. Freida says: 'The detainee must first make a request in writing which is then submitted for approval. If approval is granted, leaving the gift for the detainee becomes a significant challenge. The gift can only be left at reception at restricted times, for example, Tuesday, Thursday or Saturday, between 9.30 and 11.30 am.' Freida says, 'This makes it almost impossible for people like myself who travel a considerable distance to visit to leave something that has been requested or is a gift for a detainee.' Why would we make it so hard?

Freida says applications to visit must be made by email, and she details all the rules there. She talks about how particularly difficult that can be. She's concerned for the families and friends of people held in detention who visit them—not only visits from my electorate, but their family and friends—who may not be able to comply with the requirement being enforced from 22 January. Not everybody has access to a computer or a device that enables them to make an online application, not everyone has the standard of English to be able to read or understand the complicated application forms, and not everyone has the necessary 100 points of identification that you need to become a visitor. So we've made it absolutely onerous, and everybody knows the benefit of visitors and why it's so important. Why have we made it so hard?

Freida goes on to talk about a whole lot of other problems, but that's probably enough just to give you a sense of how cruel and inhumane these rules have become and how we've worked against what surely is the objective of supporting people in detention—keeping them sane, building community connections and making it so that when asylum is granted they can move into the community with good relationships. We are absolutely working against that.

I'd like to now turn to some of the points made in the submission by Rural Australians for Refugees. Rural Australians for Refugees has over 70 branches throughout Australia, consisting of people living in rural communities who support people and those seeking asylum. Many, many of the members of Rural Australians for Refugees travel a significant distance, many on public transport, to visit people in these transit accommodation centres. I will just take a few minutes to talk about some of the issues that RAR sees. I totally on a personal level agree with this. The RAR submission says, 'Immigration detention is ideally for administrative purposes.' So, it's really important that we have the opportunity to put people in transit camps while we sort things out, but it shouldn't be punitive. If it is going to be punitive, if we decide that, then we have rules and regulations that must be followed. They are Australian rules and they've been hard-fought. My sense is that in these particular provisions before the House today we are ignoring the well-fought rule of law.

Many people feel, and I agree, that the conditions that we are imposing on these detention centres are in many cases worse than those in our prisons. There is a lack of a time limit on detention and limited oversight of detention. The lack of a time limit on detention and the issue of attention to people's cases remain two big areas of concern for RAR.

According to the latest departmental statistics, RAR says that, as of 31 July 2017:

…the average length of detention is 442 days, with 22 per cent of the detention population spending more than two years in detention.

No trial and no sense of guilt—just by force.

RAR also says:

While the number of children in onshore detention facilities has significantly dropped, there is still no legislation to prevent the detention of children, resulting in concerns that what this bill is seeking to implement can and will impact children.

RAR talks about the explanatory memorandum of the bill and the narrative justifying why we need to do it. But the narrative doesn't talk about the people who have legally, properly and rightly sought asylum. These are not illegals; it's their right to seek asylum. The bill fails to protect the rights of this group of people and requires them to face the same restrictive measures as those who might have committed crimes—and are assessed to be at high risk. Sure, they might be in detention centres, but putting everybody in the same basket is grossly unfair.

The RAR submission talks about the immigration minister's wide-ranging discretionary powers that already exist in relation to the visas of people in detention. They say that there's no limit and no option to review and challenge these decisions. The bill seeks to grant the minister yet more discretionary power to declare any item a prohibited thing and to prevent people in detention, and their visitors, from possessing prohibited things. We have a list of them here, which includes a mobile phone—heavens above! And we will be giving the minister the power to do more—not to come to parliament to do more, but do it by regulation.

Rural Australians for Refugees is concerned about the discriminatory policy that allows some in the immigration detention centres to have access to mobile phones, while at the same time not allowing people who have come by boat for asylum to have them—and so they continue. I can't see how members of parliament of goodwill could accept this.

The explanatory memorandum also mentions visits from family and friends as being a way of ensuring people in detention maintain contact with their support mechanisms. But members of Rural Australians for Refugees report that it is increasingly difficult for families to access detention facilities. Constantly changing rules and their inconsistent application, challenges to securing a visit and getting through the screening process make it really difficult for visitors to pursue.

Rural Australians for Refugees understand that the ADF plans to implement further restrictive policies regarding the number of visitors a person can see. Why make it so hard? I don't understand where we're coming from with all of this. Why treat everybody the same? Why make it really difficult? Why say that we as a nation need to be almost bullying to get the point of view across.

The bit that really upset me as I was reading about the powers that will be passed through this House, but I do hope will be stopped in the Senate, is the use of detector dogs. There are not many people in Australia who would forget the image of those dogs at the big union demonstration on the wharves a few years ago—the horror it produced in our hearts as we saw dogs on leashes being brought by police to attack unionists. As a nation we said, 'No, we don't do that.' Yet we're going to allow these detector dogs into immigration centres where people have been traumatised and abused. There is no warrant required, no oversight required, no reporting required, and no conviction of these people.

In closing, my call-out is that this is bad law. It's over the top. It's cruel. It's not the Australian way. We are much better than this. Minister, you are much better than this. Prime Minister, you are much better than this. Your government is much better than this. People on the government side, can I sincerely ask you before you vote on this legislation to actually check in with what you're doing, because I will hold you to account. Rural Australians for Refugees will hold you to account, and the Australian public will hold you to account, because this is very bad law.

Andrew Giles (Scullin, Australian Labor Party, Shadow Assistant Minister for Schools) Share this | Link to 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.

Peter Khalil (Wills, Australian Labor Party) Share this | Link to this | Hansard source

I also rise to speak on the Migration Amendment (Prohibiting Items in Immigration Detention Facilities) Bill 2017. I join my Labor colleagues in opposing this bill in its current form. Let's be clear: of course Labor supports the concept that security and safety of detainees, staff and visitors is an important issue, and that contraband must be kept out of these facilities. However, Labor does not support that this minister, Minister Dutton, should have broadly defined powers that do not have any safeguards, other than the minister himself. While we are willing to work with the government in order to ensure the safety of detainees, staff and visitors, we will not, on this side of the House, be a rubber stamp to give Minister Dutton unchecked power, as is proposed in this bill.

The bill in its current form gives Minister Dutton way too much power. It enables, for example, the minister to determine a prohibited thing by a legislative instrument that is not disallowable by the Senate. These concerns that have been raised are not limited to me and my Labor colleagues on this side of the House. In fact, there have been a number of third-party stakeholders who have raised significant concerns, and they've raised these concerns around unchecked ministerial power. One example is in the foreword of a report, released in 2017, by Liberty Victoria's Rights Advocacy Project that specifically examined the discretionary powers of the immigration minister.

The Hon. Ian Macphee—you will be familiar with him, Mr Deputy Speaker; he's a former immigration minister in the Fraser Liberal government—has expressed that he has serious reservations with regard to the unchecked ministerial power under this minister. He said:

… ministers now exercise power that is mostly beyond the review of judges. Such power should be exercised humanely and in accordance with morality, not absolute law … The law and its practice is now unjust. It is un-Australian.

The report itself went on to say that these powers would further allow an immigration minister to play God. The report said:

Those decisions are not made in a transparent way in accordance with fair processes; rather, the Minister is empowered to an alarming degree to make decisions based upon his whim, with scant regard for due process.

The report examined the number of acts administered by each minister, and the number of public interest or national interest powers that conferred largely undefined ministerial discretion. It found the Attorney-General, Australia's highest law officer, held 38 powers within 152 acts. The immigration minister, however, far exceeded all other ministers with 47 powers within 20 acts. No other minister, not even the Prime Minister, is given anywhere near as much unchecked power. And of course we know that Minister Dutton has successfully merged some of these powers even further, under the title of home affairs minister and within his new department.

If we are to genuinely hold fast to the fundamental and most basic principles of democracy and the rule of law, we cannot abide one minister having such broad personal power, the power to make such important decisions affecting people's most basic of rights, devoid of any transparency and accountability. In short, this is overreach; a continuation, if you will, of the empire building that we've seen by the Minister for Home Affairs, to use his new job title.

Let them call themselves what they will—he can call himself whatever he wants—but, regardless of whichever title they wish to give themselves, it is incumbent on this government to ensure the safety of detainees, staff and visitors in immigration detention and transit facilities whilst adhering to the rule of law. The Turnbull government has to take seriously their duty of care for people detained in, working in or visiting Australia's onshore immigration detention and transit facilities. But it is important that the Turnbull government gets the balance right and makes a fair and reasonable case for any items they wish to have prohibited. In ensuring the safety of these detainees, staff and visitors, Labor agrees, of course, that drugs, weapons and child exploitation material should not be allowed in immigration detention and transit centres. This is painfully obvious. But we know that drugs have, in fact, gotten through the security checks.

The tragic death of Robert Elan Peihopa in 2016 inside Villawood Immigration Detention Centre shows that allowing contraband into detention facilities has dire consequences. The coronial inquest into the death of Mr Peihopa found that he passed away from fatal cardiac arrhythmia and triggers of ingestion of methamphetamine in the hours before his death. He had been in detention for more than 10 months. These drugs—these things—should never be allowed in immigration detention facilities in the first place. The Minister for Home Affairs has serious questions to answer. If he's been sitting on his hands allowing this type of thing to occur unchecked for the three years in which he's been immigration minister, what has he been doing? Only one of the nine recommendations of the coronial inquest into the death of Mr Peihopa relates to enhanced search and seizure powers in immigration detention facilities. I specifically refer to recommendation 4, which states:

Search and seizure powers available at immigration detention facilities should be enhanced to (a) prevent the entry of illegal drugs into immigration detention centres and (b) detect illegal drugs which have entered immigration detention centres.

The other eight recommendations of the coronial inquest into Mr Peihopa's death relate to required improvements in the relationship, processes and information-sharing protocols between the department and its providers—Serco and International Health and Medical Services, IHMS—and other state bodies, including improvements to treatment and rehabilitation programs made available to detainees while in immigration detention centres. As I said earlier, Labor is willing to work with the government, in the national interest, of course, to strengthen search and seizure powers. However, measures must be proportionate to the risk, appropriate to the circumstances and necessary as proven by the evidence.

Serious concern about this bill has been raised by the Scrutiny of Bills Committee and the Parliamentary Joint Committee on Human Rights. After Labor referred the bill to the Legal and Constitutional Affairs Legislation Committee for a Senate inquiry, the committee received submissions opposing the bill. Labor referred the bill to a Senate inquiry to give space to the government to make a case for why certain items should be prohibited, to allow stakeholders to consider and explain the impact of the changes on detainees and to ensure the legislation is appropriate and that there would be no unintended consequences. Of the 82 submissions to the Senate inquiry, 80 raised concerns about the bill as it is currently drafted. Only one raised conditional support for one aspect of the bill. The 82nd submission, if you like, from the Department of Immigration and Border Protection, now the Department of Home Affairs, supported the bill. Surprise, surprise.

The submissions to the Senate inquiry raised significant concerns, and they came from a vast array of stakeholders: the Law Council of Australia, the Australian Human Rights Commission, Legal Aid New South Wales, the Refugee Council of Australia, Rural Australians for Refugees, Australian Lawyers for Human Rights, Immigration Advice and Rights Centre, the Australian Association of Social Workers, Amnesty International Australia, Refugee Legal, Monash University Castan Centre for Human Rights Law, the Asylum Seeker Resource Centre—that's just to name a few. The concerns raised by these organisations have been further exacerbated by the disturbing lack of transparency about the rules and guidelines visitors must follow when visiting immigration detention facilities. Some stakeholders have reported they have been prevented from taking pens and documents for detainees to sign into the visiting areas. It should be noted that neither Serco nor IHMS—the two providers for the department—made a submission to the Senate inquiry on this bill. They didn't even take the opportunity to make a case for why these broad powers are supposedly required for the good and orderly management of the immigration detention centres for which they are responsible.

Labor has listened and considered many of the concerns that have been raised. I've said that we've worked with the government, and we'll work with them if they are willing to consider restricting some of the provisions in this bill—for instance, the definition of 'prohibited thing'. It's too broad. Labor believes that the bill should be amended to narrowly confine the definition of 'prohibited thing' and that 'prohibited thing' should be defined in statute to enable appropriate parliamentary oversight.

Detainees should also not be prevented from possessing or using electronic devices, such as mobile phones, unless there is clear evidence that their removal is both necessary and proportionate. We should ensure that all people in immigration detention have adequate opportunity to communicate with people outside the centres.

Furthermore, medications obtained under prescription or supplements recommended by health practitioners should not be caught up by these provisions. The provisions should be directed only at narcotic or restricted substances. I think that's common sense.

The bill must also limit searches of detainees' personal effects and the rooms that they reside in to cases where there is reasonable suspicion that contraband is in the detainee's possession, along with expressly referring to the principle that detainees not be searched unless there is a reasonable suspicion that an illegal substance or items are in their possession and that strip searches be conducted only in exceptional circumstances.

We've heard some debate around the issue of sniffer dogs. They can be of valuable assistance in keeping contraband out of those centres, but there are concerns about the impact that the use of sniffer dogs will have on some vulnerable asylum seeker detainees in these centres, as dogs may have been used as an intimidation tool during persecution that they may have suffered in their country of origin. Labor believes the bill should ensure that detector dogs are able to be used in immigration detention and transit centres but are not permitted to be used directly on detainees.

If the government listens to these concerns and recommendations, Labor will, of course, consider supporting the government in passing the bill. But only with the aforementioned restrictions and amended provisions can we feel secure that these centres can properly keep detainees, staff and visitors safe rather than subjecting them to the government's or the minister's failures on the management of these centres. They don't like talking about these failures in managing these immigration detention centres. If Peter Dutton, the minister, wants to have these broad powers to ban certain items then he should have used the Senate inquiry to make a case as to why certain items need to be banned.

We have seen the minister's incompetence writ large—failures through the lens of his politicised narrative on this issue. Just last week an independent review of the Department of Immigration and Border Protection, looking at the circumstances of the detention of two Australian citizens, was released under freedom of information laws. The review has revealed systematic problems in Minister Dutton's management of onshore detention centres, resulting in two Australian citizens being wrongly detained in immigration detention. Between 2016 and 2017 the then Department of Immigration and Border Protection wrongfully held two Australian citizens in immigration detention for 97 and 13 days respectively. I repeat: this government wrongfully held Australian citizens in immigration detention. For all Minister Dutton's arrogant swagger and bluster about management of these centres, border security and how strong he is on all of these matters, the incompetence is absolutely staggering.

This investigation exposed the failures by the minister to manage Australia's onshore immigration detention centres, and it included ignorance of critical information and a failure by a number of senior department officers to recognise that the individuals were Australian citizens. Staff involved did not have the fundamental level of knowledge required to perform their duties, and officers did not consistently demonstrate the requisite knowledge, understanding and skills to fairly and lawfully exercise their power to detain.

Evidence from this review found that resourcing issues and management's focus to address timeliness in delays, rather than ensuring the quality and lawfulness of the decisions, were at the root of these problems. Findings like these are why we need more transparency in the accountability of the Department of Home Affairs, not less. It's exactly why we need the government to fully explain and justify why Minister Dutton needs such unfettered and ill-defined powers. The incompetence, the failures and the lack of transparency are part of a broader and alarming pattern. The creation of the Department of Home Affairs further neglects responsibilities with regard to immigration. The fear-mongering and the securitisation of immigration policy disregard that this is fundamentally a social and economic area of policy about the management and facilitation of new migrants coming to our country and contributing economically, socially and culturally.

Susan Templeman (Macquarie, Australian Labor Party) Share this | Link to this | Hansard source

From the start, I want to be clear. I don't want to see drugs in immigration detention centres. I don't want to see child exploitation material in immigration and transit centres. I don't want to see weapons in immigration detention centres. And I think we can all agree on those things. If they are in immigration detention centres today, it raises serious questions about the basic responsibility that the minister has to keep people safe. If there needs to be improved search and seizure powers, then we are willing to work with the government to take the appropriate and proportionate measures that are necessary based on proven evidence. But there are already wideranging powers under section 252 of the Migration Act. You'd have to wonder why more powers are needed. The Senate inquiry did not establish a case—the government did not put a case—around the need for these additional powers. You'd have to ask why the minister isn't able to control criminal activity within his detention centres under the current act and why he hasn't been able to take action against detention centre staff who are breaking the rules and profiting from the desperation of detainees.

The problem with the Migration Amendment (Prohibiting Items in Immigration Detention Facilities) Bill is that it gives the broadest possible powers to the minister to ban items in detention, to conduct searches and to change the rules at whim. This is at a time when we have unprecedented secrecy about what happens within the Immigration and Border Protection portfolio. This is about broad powers with no checks and balances on the Department of Home Affairs. One of the government's reasons for wanting these blanket bans on a range of items is based on the increased number of detainees in onshore immigration detention who have criminal convictions. These are people who've had their visas cancelled due to criminal activity proven in court. The argument goes that, to deal with the increased risk these people pose, all people in a detention centre should be subjected to the same restrictive practices. Yet more than 60 per cent of the current population of detention centres and transit centres are asylum seekers. These are overstayers or people who have not committed any criminal offence. So what the minister has failed to do—what the government has failed to do—is make a case for why the measures in this bill are required to be applied across the entire population in detention and immigration transit centres.

The measures in the bill are disproportionate to the stated risks and the government doesn't explain what it's done to address those risks in other ways rather than adopting broad and restrictive rules to the whole detainee population without considering the vulnerabilities and differences within that group. I am mindful of the teacher who punishes the whole class because one student hasn't handed in their homework. It's a one-size-fits-all approach that does more harm than good. Immigration detention, for most people, is for administrative purposes and is not punitive. Yet, perversely, many of the conditions that this bill wants to impose are already tougher, and will become more restrictive than, the conditions in prisons.

I want to look at the detail of what's being proposed here and why there are significant issues as it's currently written, including concerns about this bill from the Law Council of Australia, Legal Aid New South Wales, the Refugee Council of Australia, Amnesty International and, from my own electorate, the Blue Mountains Refugee Support Group. We are so concerned about the way the bill is written that we, and many of the submissions to the Senate inquiry, believe it should be started over.

Let's talk about the definition of a 'prohibited thing'. Currently, this includes illegal possessions such as narcotic drugs and child exploitation material. We agree these must be removed from centres, but we disagree with the minister's power to determine, by legislative instrument, what this category of prohibited things extends to. As the Law Council of Australia note in their submission on the bill, virtually any kind of item could be declared prohibited if the minister felt like it.

Concerns about this are exacerbated by the lack of transparency around the rules and guidelines visitors must follow now when visiting immigration detention facilities. I visited Villawood some years ago, and my recollection is of incredibly tight security. The regular visitors to Villawood from the Blue Mountains Refugee Support Group shared their experiences, these days, of constantly changing rules. From week to week there can be different criteria about the process they go through, the conditions they have to meet and who's allowed to visit. The most recent thing they told me is that last year visitors to detention centres were banned from bringing in fresh fruit, home-cooked food, board games, permission forms to seek professional help on a detainee's behalf and any paper or pens. They were all banned last year. Visitors now face draconian security measures and are only allowed to see one person at a time. Previously, visitors could inject some humanity for those facing indefinite detention by sharing fruit and food, playing board games and even celebrating birthdays. I'm quoting the Blue Mountains Refugee Support Group: 'We can't even take in a birthday cake or a piece of paper to record someone's birthday or phone number.' When you're banning birthday cake, you've really got to wonder how we've got to this point.

I note that these decisions regarding what counts as a prohibited item stand without any checks and balances to the minister's decision. They stand without any clear guidelines as to what exactly is an item that might be a risk to the health, safety or security of persons in the facility. They stand without any consideration of how the very law the Turnbull government proposes may further alienate and endanger those they're supposedly trying to keep safe.

There are already existing powers under section 252 of the Migration Act that allow officers to search for, and confiscate, dangerous items. I'm urged to ask why the minister desires even further rules, this further choking and veiled control over the privacy and lives of those in detention.

The explanatory memorandum given for this bill constantly referenced the few cases in which there had been violent crime and child exploitation material. Every one of us on this side has said that, while there must be measures introduced to ensure that these instances are not repeated, the entire body of immigration detention centres should not have to suffer at the discretion of a minister.

If you are going to change the rules, you need to take into account the first recommendation of the Law Council of Australia's submission—to narrow the definition of a prohibited thing—and, in accordance with the Legal Aid New South Wales proposal, make a prohibited thing defined in the statute to enable appropriate parliamentary oversight. There should not be these broad, sweeping, undefined provisions that are contained in this bill.

I want to talk about strip searches and room searches. This bill allows broad provisions relating to both those things with very few safeguards. I've already mentioned section 252 of the Migration Act, which relates to the screening and seizing powers authorised officers have in relation to people in detention and their visitors. It's worth understanding what is already allowed. I thank the Refugee Council of Australia for this list: sections 252, 252AA, 252A, 252C and 252G allow authorised officers to search and screen, without warrant, a person, their clothing and property, or conduct a strip search of a person in detention. This is to look for weapons and items that can be used to inflict bodily injury or to help the person to escape from the detention facility. They can also look for documents and other things that are evidence for cancelling a person's visa. Visitors can already be searched for items that can endanger the safety of people in detention and staff or that would disrupt the order of the facility. These are wide powers.

This bill wants to extend the law to search for prohibited items, which would include mobile phones. Surely there is something wrong with a strip search merely to find out whether or not a person is carrying a mobile phone or a SIM card. In examining the bill, the Senate committee concluded that the provisions are too broad and that strip searches of detainees should occur only when there is a reasonable suspicion that the detainee possesses an illegal substance or contraband. The Blue Mountains Refugee Support Group notes that:

… strip searches and draconian search provisions without search warrants, does not demonstrate the Australian values of decency and respect. It denies people who have fled to us for peace and safety, any sense of wellbeing and risks further traumatising them.

Let's talk about mobile phones. The government's explanatory memorandum details how mobile phones have enabled criminal activity within the immigration detention network, but fails to consider the positive impacts of mobile phones in the hands of people awaiting an administrative decision on their fate. Let me remind you of the mental health crisis within these detention centres: between January 2013 and August 2016 there were 1,730 recorded incidents of self-harm in immigration detention, according to the Australian Human Rights Commission. Imagine if we were to cut these same people off from the one link they have to family and external support networks. What if we were to take away the small sense of home that they find in these phone calls? One of my motivations for being in this place is to see that we better support people's mental health, so I cannot support a decision that deliberately worsens one vulnerable group's mental health. An already debilitatingly slow and lonely system is made worse for those who, in many instances, have done nothing wrong. What if, by taking their phones away, we make it even harder for them to contact legal representatives and assistance?

Amnesty International, an organisation which has visited many detention centres over many years, says its experience has been that landline and internet access has consistently proven to be inadequate in meeting the needs of people in detention, especially for people seeking asylum. In many facilities, access to computers and internet is based on rosters set by detention service providers, offering rigid timeslots that don't consider the time difference with people's countries of origin. There are many reports of family members trying, unsuccessfully, to contact loved ones in detention by going through the switchboard, and of lawyers trying to work within tight deadlines with their clients. Keep in mind that lawyers often need to speak to their clients about highly confidential and sensitive issues like rape and torture; a public phone booth with a queue of people behind you is not the ideal place for these conversations to happen. Every one of these concerns is echoed by the Australian Human Rights Commission, which has consistently argued there should be greater access to mobile phones for asylum seekers. In the absence of other appropriate communication options or direct intelligence relating to specific individuals, detainees should be allowed to have mobile phones.

I will talk briefly about access to medication. Individuals have a right to privacy and to manage their own health. The blanket ban on all medications once again unfairly impedes these rights, and innocent people are being punished for the mistakes of a few. When medications have been prescribed, detainees have the right to keep and administer these medications themselves. The people who are in detention for administrative purposes are already disempowered, and in fact we do them no benefit by turning them into even more institutionalised patients.

Finally, on sniffer dogs, we recognise that there is a role for detector dogs to be used in immigration detention and transit centres, but not when they are used on detainees. This was noted in recommendation 6 of Labor's Senate committee report. Clearly, the move to use sniffer dogs on detainees fails to respect the trauma and circumstances that someone seeking asylum may well have experienced. It only serves to further humiliate and traumatise those in centres.

We have a responsibility not to do more harm. But what we have here before us is a bill that further worsens the conditions of people who've undergone more pain or suffering than most of us can fathom. In a time where we should be restoring the human rights to those in detention, this seeks to demolish them. For this reason, I cannot support this bill.

Rebekha Sharkie (Mayo, Nick Xenophon Team) Share this | Link to this | Hansard source

I rise to oppose the Migration Amendment (Prohibiting Items in Immigration Detention Facilities) Bill 2017 in its current form. I will just speak briefly on this bill, and I will leave it to my colleague Senator Griff, in the other place, who will be seeking to move amendments to this bill and who also has carriage of the immigration portfolio on behalf of NXT and has done a huge amount of work on this bill.

The provisions of this bill are awash with ministerial executive overreach—overreach designed to allow the minister to deny any item of comfort or communication to asylum seekers in detention. For every piece of legislation brought to this place, we in this chamber must ask: what is the purpose of this bill? And for this bill I can see no purpose.

Now, it stands to reason that, where asylum seekers in Manus and Nauru are in possession of items that are illegal under Australian Commonwealth or state law, or even Papua New Guinean or Nauruan law, this possession should also be prohibited in detention centres. Illicit drugs, child pornography—none of these items should be in our detention centres, and I believe every member in this place agrees.

I also recognise the need to retain the existing powers in the Migration Act to remove weapons, as well as items which could be used to escape from immigration detention centres in Australia, from the possession of asylum seekers. However, if asylum seekers have items that are not weapons or otherwise illegal under Australian law, why should they be prohibited? Why should asylum seekers not be able to access items that are indeed legal? They are not in prison. I repeat: they are not in prison. The government has been at pains to say that they are free to come and go from detention facilities in Nauru and Manus. So why would we deny them simple liberties such as mobile phones to communicate, if they are not indeed prisoners?

As I've said previously, I cannot but agree with the simple principle that immigration detainees should not be able to possess items that are illegal under state or federal law. However, this bill is clearly much more than that. It gives unfettered power to the minister to prohibit any item he or she chooses, regardless of the reason for that prohibition.

I suspect that mobile phones, especially those with cameras, would be the first item to be considered on the minister's list should this legislation pass the parliament in its current form. Right now, there is limited knowledge of the conditions and events that happen, particularly on Manus and Nauru. We do not have freedom of the press there. We do not have parliamentary delegations. There is very little transparency. The only insight we truly have—for those of us who are concerned about the treatment of asylum seekers—is to follow a number of detainees on Twitter and other social media. It is the only way that the Australian community and indeed the global community—and, believe me, the global community is watching—have any understanding of what is truly happening on Manus and Nauru.

There is one man in particular that we rely upon, although there are many men, particularly on Manus, who are on social media. He's a Kurdish freelance journalist. His name is Behrouz Boochani. His communications on social media, I believe, are the only way we have some sort of window into life on Manus. I can imagine it takes great courage for Mr Boochani to speak out daily on social media about the real life on Manus, and this bill would silence him.

A core principle and aim of NXT is to pursue greater transparency and accountability in government. In its current form, this bill could be used by the minister or future ministers to thwart that aim. Therefore, we cannot support it.

Sharon Claydon (Newcastle, Australian Labor Party) Share this | Link to 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.

Terri Butler (Griffith, Australian Labor Party, Shadow Assistant Minister for Preventing Family Violence) Share this | Link to this | Hansard source

I rise to raise serious concerns about this bill, the Migration Amendment (Prohibiting Items in Immigration Detention Facilities) Bill 2017, for a range of reasons. Of course it is admirable and sensible to seek to ensure the safety of people held within Australia's care. That's why people on this side of the House have been so outspoken in respect of failures to protect the safety and security of people in our care in offshore detention, for example. But the desire to protect people's safety should not lead us to absolve ourselves of the responsibilities that come with being legislators, and it should not lead us to delegate to a single individual the legislative authority of this parliament, particularly in this case, where what's sought is that sort of delegation without any legislative instruments that that individual makes being disallowed in this parliament.

This bill seeks to confer on the immigration minister the power to prohibit items in detention centres by legislative instrument and to make such legislative instruments as he considers appropriate, and to do so in a form of legislative instruments that are not disallowable by the parliament. In other words, it would allow the immigration minister to simply decide to issue an instrument that certain things are not able to be brought into detention centres, and this parliament would have no authority to then disallow that legislative instrument. That is obviously a concern, not because of the particular personality of the minister concerned but because no minister should be given that authority when it comes to this particular matter.

Immigration detention centres are not prisons. Immigration detention centres are not a form of punishment. Immigration detention centres are not places where people should be deprived of the usual amenity of life. A lot of the people—certainly not all of the people nor the majority of the people, but a lot of the people—in immigration detention centres have done nothing other than seek Australia's support and protection, having fled persecution or a reasonable fear of it. They're people who are already traumatised. They're people who have been through persecution at home. There's an example that was in the High Court in December of someone who had been seeking asylum in Australia, had been seeking our protection, who had been persecuted at home having converted to Christianity. That's a pretty common story. When we have asylum seekers in our detention centres, we should be seeking to respond and protect them with compassion and support, not seeking to make that form of detention punitive. The detention should be as short as possible. Refugee status determinations should be made in a timely way. People should obtain protection once their refugee status determination has been made and they should be treated with respect and with safety and security in the intervening period.

On the weekend I met a woman who had been born in 1932 and, at the age of seven, was an asylum seeker and then a refugee. In 1939 she escaped and she reached England, where she was described as a 'friendly alien from a hostile nation'.

We're now facing a very different set of circumstances many decades later. Nonetheless, we're still seeing situations where people are fleeing the risk of imminent death, are coming to completely strange countries and are seeking protection. I'm pleased we don't call them 'friendly aliens' any more, but I'm not pleased at the punitive and often unreasonable way in which people are treated having arrived here seeking our protection. There are plenty of examples of it.

I've spoken before about my concerns about the lack of safety and security in relation to offshore detention. I've supported Labor's policy at the last election of increasing funding to the UNHCR by $400 million so that the UNHCR could assist people in attaining refugee status determinations while still en route, rather than making the dangerous and risky decision to get onto a boat, with a view to avoiding people being in that very difficult situation.

I supported the reinstatement of 90-day targets for the processing of applications for refugee status determinations, which, unfortunately, this government removed when it came into office. It would just be preferable if people, instead of sitting on islands and in indefinite detention, losing hope, could obtain their status determination within 90 days, or at least a preliminary decision subject to appropriate review and appeal rights, of course.

I supported the reinclusion into our domestic law of references to the refugee convention, which this government was successful in having removed in 2014 with the support of the Senate crossbench. I opposed, as did Labor, the reintroduction of temporary protection visas, because I believe that when somebody has made it to a country of protection and has obtained a refugee status determination—has obtained a determination that they were fleeing persecution or a reasonable fear of it—we should let them start a new life and not leave them in limbo on a temporary visa. Imagine trying to get a job or a loan and not knowing whether you were going to be deported from the country in a few years time. You know as well as I do, Mr Deputy Speaker Vasta, because you've met many successful members of our communities who've come to Australia as refugees, that people who've fled persecution, people who've managed to get away and people who've had the wherewithal to start a new life are often entrepreneurial people who make a great contribution through businesses or social services or our community. I do wonder what we're forgoing as a nation by failing to increase the refugee intake and by failing to have stronger and more compassionate policies towards refugees. Like everyone on our side of the parliament, I've certainly had significant concerns and have spoken out about these issues in the past.

In the same batch of legislation in which the refugee convention wasexcised from domestic law—references to it were removed—we saw the introduction of the so called fast track process with a view to dealing with more of the applications for refugee status determinations that were extant at the time. That fast track process has very recently been in the courts. Again, I'd like to take the opportunity to raise serious concerns about it, because it's a process that denies procedural fairness to people based on the way that they got there—based not on the circumstances they left or the extent of the persecution that they faced, but just on their mode of arrival

I mentioned the case earlier of the man who said he'd left persecution because he had converted to Christianity. What happened in that case was he said: 'I'm a Christian now. I've converted. That's why I was persecuted. I go to church.' And there was a private conversation—he didn't know anything about it—where somebody cast doubt on his conversion because he hadn't been coming to church as much. The lawyers said that, if they'd asked him, he would have said he had moved house and was finding it more difficult to get to that same church. He would have gone and got other evidence to demonstrate his conversion, but he wasn't told about it, and that's under the fast track process.

It's important that we have procedural fairness for people when their rights are being considered and determined, particularly when the potential consequences are so prejudicial.. There have been a range of concerns that I and others have had in respect of policy responses to asylum seekers and refugees in this country, and it's in that context that this bill—which, as I said, seeks to confer on a minister, an individual, the right to make legislative instruments which are not disallowable by the parliament—is so concerning. That's giving a person a lot of power over the lives of hundreds of people who are being deprived of their liberty not for having committed a crime, not for having done anything illegal, but for having come to Australia to seek our protection, having fled persecution or a reasonable fear of it.

I've had some concerns about the operation of detention centres for some time. I visited the Brisbane immigration facility some time ago. Of course, I filled out a lot of paperwork to get in, brought my ID and went along to the facility. We were moved from the entrance point to a visitor facility. We weren't allowed to move around freely to talk to people. We were watched the whole time and we were brought to a little segregated area for visitors. It was quite new. Shortly after that visit, I started to hear from community groups, Christian groups, who were visiting—and I should say it was Reverend Pickering from the Uniting Church who took me along to the immigration detention centre that I visited, and I thank her for that—that the consequence of setting up this visitor centre, rather than allowing people to do what they used to do, which was meet with asylum seekers just in the common area people used for lunch or for gathering, was that there had been the imposition of a limit of two on the number of visits that someone could get per week—two visits per week.

We're not talking about criminals; we're not talking about prisoners. I'm not making any comment about what should happen with prisoners, but here we're talking about people who, as I said, have not been convicted of any crime. So we started to see a limit on the visitors that people could have. Traumatised people who had fled persecution were not able to get as much support as previously. I understand from the minister that that later increased to three visits per week, but the consequence of these sorts of arbitrary decisions around where visits can happen and how many can be allocated per week have real ramifications for the people living in these centres and waiting for an outcome of their situation.

We also learned that, in that particular detention centre, there had been a policy enforced that you had to get prior approval to bring any gifts of commercially packaged food. Again, we're not talking about prisoners; we're talking about people who are waiting for an outcome. Of course friends and family will want to bring food as gifts. After further inquiries, I was then told that, in fact, as well as there being this requirement for prior approval for bringing in a packet of Tim Tams or whatever, now there was a limit of two items of commercially prepared food. I heard stories of people not even being allowed to leave tea bags behind.

Of course I've raised these concerns and other concerns with the minister in previous items of correspondence, as I was already concerned about the arbitrary nature of decisions being made about the interaction between people waiting for their outcomes in immigration facilities and people in what I think the commissioner from the then immigration department described as the 'real world', which I thought was a pretty telling way of describing it. There are already some arbitrary constraints in relation to the engagement that people like me from the community can have with people inside immigration detention centres. So I'm concerned about this idea of providing a new right to the minister to decree such decisions by legislative instrument, issued without any need for recourse to this House or the other place about what might actually start to occur in the event that the minister does obtain that power.

You'd also be aware, Mr Deputy Speaker Irons, that this bill seeks to allow the prohibition of mobile phones within immigration detention centres. That is a concern that a number of my constituents have raised with me, and I anticipate that that will continue to be the case. They will also have concerns about any limitations on internet access and the ability of detainees to be able to communicate about what's happening in the facility, particularly given that, as I said, there have been some limits on visits from outsiders.

Andrew Wilkie (Denison, Independent) Share this | Link to this | Hansard source

In 2015 I gave a speech in this place in which I characterised Australia as having reached a 'pre police state'. In that speech I went into some detail, lamenting the concerns in the community at the way our democracy and our liberties have been diminished. I think I spoke on behalf of a great many members of the community: people who had seen, experienced, sensed or just suspected that our country was evolving in a negative way, that we could no longer take for granted things that we used to, and that the power of the state in this country was being extended beyond any reasonable limit.

I regret to say that, as I stand here today and talk about this bill, nothing has changed; in fact, if this bill were to become law then things will have worsened. Remember, this bill would allow: the minister to ban whatever he wants from immigration detention centres and to extend the existing screening search-and-seizure powers, including strip searches; areas of immigration detention to be searched without a warrant; and the use of detector dogs to screen not just detainees but even people visiting an immigration detention centre. In other words this bill goes beyond any reasonable attempt to improve the way activities are conducted in immigration detention centres.

In effect it goes another step closer to turning immigration detention centres into jails, but in some ways it goes beyond and is even worse than that, because at least the jails in all our jurisdictions conform to or sit within a framework of carefully considered laws and legislation. Before someone goes to jail, they would normally have been suspected of an offence, have been charged and have had their day in court, where they would have had legal representation. What goes on inside those prisons would be overseen by the state and territory governments.

In this case the government is seeking to go even further in the way it can, completely outside the justice system, grab hold of someone in the community and detain them indefinitely without charge. Those people in immigration detention centres haven't necessarily been suspected of any wrongdoing, haven't been charged with anything, haven't had a day in court and haven't had a chance to be legally represented; they are just jailed indefinitely without charge on the whim of a government official or the relevant minister in this government.

This is really alarming. When it comes to immigration matters and irregular immigration to this country, this government thinks it can act outside of any law. It thinks it can create these almost 'black sites' where it can just grab someone off the street and lock them up indefinitely without trial and with very few rights—even fewer, if this bill becomes law. There is no procedural fairness whatsoever. It is completely outside of any sort of proper legal framework and process.

Why on earth would the government want to do this and behave in this way? I think there are a number of reasons. It is another effort by the government to demonise people who are involved with immigration matters and, in particular, those who attempt to come to this country through irregular means. I am talking, of course, about asylum seekers in particular. But in doing that it is changing the whole immigration detention arrangement and ensuring that anyone in the community who is not an Australian citizen but is even merely suspected of something is thrown in one of these immigration detention centres. In a healthy and law-abiding country like Australia, if there is someone in the community of any nationality who is suspected on reasonable grounds of any wrongdoing—and the government likes to say it is suspected sex offenders, members of bikie gangs and whatnot—they should be charged and front court in Australia. What's this about putting them in mysterious immigration detention centres without trial, in some cases indefinitely—which is a punishment in itself—and then sending the problem to some other country? If someone has done something wrong according to Australian law in this country then we should deal with that matter in this country and they should front a court in this country. They certainly shouldn't be put in an immigration detention centre.

Some years ago now, in 2014, I approached the International Criminal Court to bring to their attention the concern of many Australians that a series of Australian governments had been in breach of the Rome statute. That series of Australian governments, including this one now, are guilty of crimes against humanity for a whole range of reasons. Article 7 of the Rome statute covers 'imprisonment and other severe deprivation of physical liberty in violation of fundamental rules of international law', 'deportation or forcible transfer' of people, and other acts 'intentionally causing great suffering, or serious injury to body and mental physical health'. That part of the Rome statute sounds as relevant today and as relevant to this bill as it has sounded on any number of occasions in recent years and during the terms of a number of governments in recent times.

I will be sending my concerns about this bill to the International Criminal Court as well, and they can add it to the file—and I suspect it is quite a hefty file. It does raise the question: when is an Australian government going to start acting like the government of a lucky, wealthy and civilised country? When is an Australian government going to start respecting international law when it comes to immigration matters? I have already spoken in a bit of detail there about how, in my opinion, a number of Australian governments have failed to comply with the Rome statute, which is an important international agreement we have signed up to. I think it is also self-evident that a series of Australian governments, including this government, are also failing to abide by the refugee convention, the Convention on the Rights of the Child and the International Covenant on Civil and Political Rights.

What is so hard about understanding the importance of international law? What is so hard about understanding that we have signed up to those agreements in good faith because we thought they were important and they are still important and we should still comply with them? It seems to be the case with Australian governments these days that international law is only important when it suits us. When it comes to immigration matters—in particular, irregular immigration to this country—it doesn't suit us, so we ignore it. In doing so, when it comes to immigration issues, this country has become a pariah among the community of nations. The way we deal with irregular immigrants to this country is simply unconscionable.

It is even more unconscionable when you think that the global situation of displaced people is even worse now than at any other time—far worse even than at the end of the Second World War. Looking at the UNHCR figures, there are 65.6 million people forcibly displaced worldwide, of whom more than 20 million are refugees and 10 million are stateless people. No wonder Turkey is hosting 2.9 million of these people, Pakistan 1.5 million, Lebanon one million, Iran about one million, Uganda about one million and Ethiopia three-quarters of a million. This is an enormous global challenge, and the burden is being shouldered by a small number of countries—and not ours. It is simply not good enough for this government and previous governments to crow and say, 'Oh, but we're the first or the second or the third best in the world when it comes to the number of people we take in through a humanitarian program.' That's cooking the books, because that's referring only to the percentage of people that are taken through the UNHCR program. It completely ignores the fact that millions more—tens of millions more—are displaced and are refugees.

We are not a generous country, and we are going to be a whole lot less generous if this bill becomes law. How dare the minister and the government think that it's appropriate to take these sorts of actions when it comes to immigration detention centres, which are mostly filled with people dealing with simple immigration matters? These centres are not full of sex offenders and bikies. They're full of regular people, many of whom are awaiting a simple immigration determination, often because they've attempted to come to Australia because they've been fleeing for their life.

This bill is unsupportable, and I certainly won't be supporting it. No wonder. Just in the last 12 months, I think I've counted five different episodes where the United Nations has criticised Australia. Some people in this place will say: 'Who cares about the United Nations? They're discredited.' Well, they are not discredited. At the end of the day, the United Nations is the best we've got. It is the one body where the community of nations can come together and speak as one. For this country to have been criticised, on my count, five times in the last 12 months because of our response to asylum seekers is simply unconscionable. In the last 12 months we've had the head of the UNHCR, no less, criticise Australia. We've had the United Nations Committee on Economic, Social and Cultural Rights criticise Australia. About a year ago a United Nations team in Papua New Guinea criticised our response to asylum seekers. The UN Human Rights Council criticised Australia's response to asylum seekers. Quite recently the United Nations Committee on the Elimination of Racial Discrimination criticised Australia.

I am proud of this country and I am proud of everything we have achieved and of what we can become, but I am ashamed of the way this country responds to asylum seekers. I am ashamed of the fact that we have mandatory detention, that we have offshore processing, and that we have tow-backs and temporary protection visas. I am ashamed of the fact that the Republic of Nauru is being used as a prison island for people, most of whom have simply tried to make it to Australia because they were fleeing for their lives. I am ashamed of the fact that there are hundreds of men on Manus Island in Papua New Guinea that have supposedly been released, only to do their best to survive in a hostile community—an understandably hostile community; they've got their own concerns about what these hundreds of men from other countries are suddenly doing wandering their streets and trying their best to live in substandard accommodation and facilities, with completely inadequate services provided for them. I am ashamed of all of this.

Mark my words: when the history books are written about this period in Australian history—the period from a few decades ago up until now, and particularly now—historians will lament the fact that this country responded to asylum seekers in the way it has. They are not going to say what a wonderful country we are because we stopped the boats. Those historians are going to lament the fact that we completely and utterly lost any respect for relevant international laws, that we became an international pariah, and that we had ministers and governments who thought it was okay to extend the screening, search and seizure powers, including strip searches, of people in immigration detention, to have dogs sniffing not just the inmates but even the people visiting them in what are effectively jails, to search without a warrant, to ban anything we want, and to, in effect, establish these black sites where we can dump any non-Australian citizen indefinitely without trial in dreadful circumstances and think it's okay. It's not okay. I hope and I expect the opposition will vote against this bill, and I'm sure a number of the crossbenchers are going to vote against it, including me.

Anthony Albanese (Grayndler, Australian Labor Party, Shadow Minister for Tourism) Share this | Link to this | Hansard source

I rise to oppose the Migration Amendment (Prohibiting Items in Immigration Detention Facilities) Bill 2017, and I do so consistent with my view over a long period of time that you can be tough on people smugglers without being weak on humanity. This piece of legislation seeks to impose draconian measures. It seeks to give the minister too much power and it undermines Australia's proud record as a nation of compassion, as a nation that respects human rights and as a nation that is prepared to treat people in a fundamentally decent way—to treat them with respect. That is what we all expect of every human being in the way that they relate to other human beings. That is what we teach our young people. It is what I got taught growing up as a young person in this country, both at home and in school.

This legislation seeks to amend the Migration Act to allow the immigration minister to determine a 'thing' as prohibited in relation to immigration detention facilities and detainees. What a 'thing' is is not given any serious definition. The bill would provide for a minister, on a whim, to determine that something was a 'thing' and therefore to be excluded, without any recourse to review or sensible action after the event. Were legislation to come before this chamber outlawing the presence of 'things' that should not be in detention centres or anywhere else for that matter, like weapons, drugs and child pornography—things that are either dangerous to detainees or to other people, or abhorrent to all—the opposition would be very sympathetic to the fact that the government is suggesting that these things have been available while this government has been in office.

I am reminded that the time they have been in office is approaching five years now. They've had a term and a half in office, but, from their rhetoric, you would think they were much more comfortable on this side of the House. They behave each and every day like an opposition in exile on the government benches rather than a government that actually has the capacity to govern truly in the national interest, that has the capacity to bring Australians together and that has the capacity to forge a common path to support national unity. They are a government that is always looking for division, always looking for a wedge and always looking, with great hyperbole, for a way to present itself as being the only thing standing between order and chaos in this country. Well, in fact, this bill would advance chaos. It would undermine our respect for proper legal processes.

The bill amends search and seizure powers, including the use of detector or sniffer dogs, for screening of detainees and visitors. It would apply a new statutory power to search facilities operated by or for the Commonwealth in order to enforce both existing and new prohibitions. It is an example of legislative overreach—not the first one we've seen from the former immigration minister and now Minister for Home Affairs. The products that were identified in the minister's introductory speech—as I said, drugs, weapons and child exploitation material—should never be found in detention centres or anywhere else. The people working to protect our borders should have the proper powers to search for and remove contraband.

The fact is that, whilst Labor is certainly willing to work with the government to strengthen search and seizure powers, measures must be proportionate to the risk, appropriate to the circumstances and necessary as proven by the evidence. That's one of the reasons why we supported the referral of this legislation for inquiry. That inquiry found that overwhelmingly the submissions, which came forward from a whole range of organisations, opposed the bill as it is currently drafted. Indeed, there were 82 submissions made to the Senate inquiry and, of those, 80 submissions raised concerns about the bill as it is currently drafted.

The organisations include the Law Council of Australia, the Australian Human Rights Commission, Legal Aid New South Wales, FECCA, the Refugee Advice and Casework Service, the UNSW Kaldor Centre for International Refugee Law, the Refugee Council of Australia, Rural Australians for Refugees, the Australian Lawyers for Human Rights, the Immigration Advice and Rights Centre, the National Justice Project, the Australian Association of Social Workers, Amnesty International Australia, Refugee Legal, Monash University Castan Centre for Human Rights Law and the Asylum Seeker Resource Centre. All of these organisations, diverse as they are, were united in identifying weaknesses in this legislation.

The evidence from the Senate inquiry found that this bill is an overreach by the minister, who wants to grant himself unchecked power by being able to prohibit any items, without making a case for it and in a way that avoids parliamentary scrutiny. This is really sloppy legislation. As someone who has had experience in the area of transport security, with regard to aviation in particular, I know that you must always be accountable for what you're doing. This bill seeks to remove that and would allow the minister virtually unfettered power to determine that something was literally a thing that should be prohibited and without proper review. The bill, indeed, would allow the minister to determine a thing as prohibited without discrimination. It then seeks to amend the search and seizure powers of authorised border protection officers and their assistants to search for, confiscate and destroy those things deemed to be prohibited by the minister. The definition of a prohibited item under this legislation may include anything if it might—not that it will—be considered a risk to the health, safety or security of persons in a detention facility or to the order of the facility itself. Examples include mobile phones, SIM cards, computer tablets, medications, healthcare supplements, food and literature.

There are a range of people in detention here. As of 31 October last year, there were 1,264 people in onshore immigration detention. Of those, 462 related to character cancellations under section 501; 324 were irregular maritime arrivals; and 478 were the other detention group, including visa overstayers, noncitizens who have breached visa conditions and travellers who didn't get through the immigration clearance system. Currently, visitors to immigration detention and transit facilities must pass through a metal detector or be 'wanded' with a metal detector, but officers don't have the power to ask visitors to empty their pockets or deploy a sniffer dog or search a visitor if they have a reasonable suspicion that the visitor is carrying contraband.

In February 2017, the government banned mobile phones in immigration detention centres, but a detainee was successful in obtaining an injunction from the Federal Court. They were successful because the court found that officers didn't have that authority. The department appealed the injunction to the Federal Court in August, and they lost. This is a government that has lost, because at times they haven't sought to change the law before they have tried to act as if the law had been changed. On this occasion, they are trying to change the law but they are doing so in a way which is so sloppy, and it goes to the politics of this issue.

For reasons that are perhaps beyond my own comprehension, I agreed to do an interview with the Daily Telegraph yesterday, with Miranda Devine, who is someone with very strong views across a range of issues. One of the things that she put to me in that interview was: 'It's actually putting out a very tough line that seems not to be very kind or human in order to stop the people smugglers having a product to sell, in order to stop the boats.' What that is doing, be it the advocates for the government or the government itself—sometimes the advocates are a bit more up-front than the government—is not really about sending a message to the people smugglers or to asylum seekers; it is about sending a domestic message. It is about sending a domestic message for political purposes in order to be, as Miranda Devine put to me, not very human, essentially, towards fellow human beings. That was the question put to me. I think we are a better country than that. I think we can do much better than that. I think we can be very tough on people smugglers, without resorting to, as a conscious decision, treating people as less than human; that should be our objective. In response to that, I said: 'What you seem to be suggesting is that we would consciously mistreat people in order to send a message. I hope it is not the government's policy. They certainly say it isn't.' The amendments in this message, in my view, are aimed at sending that domestic political message. It is clouded by pretending that it is about sending a message somewhere else. It is really about a domestic political message, putting up something that no-one with any sense of compassion or decency, no-one who has been raised with a view that we have a responsibility to be kind to others and to treat others as we ourselves would like to be treated—as a philosopher who many on the other side say they follow said most famously—would do. That is why this legislation is, frankly, unsupportable. We are quite happy to support measures that are appropriate. We have no problem with that whatsoever, but this legislation simply goes too far, and that is why it is not worthy of support.

Mark Coulton (Parkes, Deputy-Speaker) Share this | Link to this | Hansard source

The debate is interrupted in accordance with standing order 43. The debate may be resumed at a later hour.