Tony Pasin (Barker, Liberal Party, Shadow Assistant Minister for Infrastructure and Transport) Share this | Link to this | Hansard source

I will take a short moment to address the Migration Amendment (Prohibiting Items in Immigration Detention Facilities) Bill 2024. Dr Haines will join us shortly when she is available and I will conclude my remarks. We currently have a significant challenge in and around migration. The challenge is one that resonates not only with traditional considerations around migration but also with the economic situation that we are dealing with. Over the course of the last two years, we have seen significant challenges around the number of people arriving as net migration as put upward pressure, if you like, on inflation, which is resonating significantly. With that, I am grateful to my friend, who has indicated she might assist the House as we wait for Dr Haines.

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

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

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

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

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

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

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

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

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

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

…   …   …

(ii) obtaining support of a prescribed kind; or

(iii) communicating governmental or committed matters.

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

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

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

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

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

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

To simply assert the changed composition of the cohort of people now in immigration detention is no justification for an across-the-board approach without any differentiation.

The member for Cooper said:

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

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

In his second reading speech, the minister said:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

He went on to say:

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

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

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

To simply assert the changed composition of the cohort of people now in immigration detention is no justification for an across-the-board approach without any differentiation. The minister says that these powers are required because, in his words, 'a large proportion of people in detention have criminal histories,' but that can be no justification for blanket prohibitions—for not treating people as individuals on their own terms and for not recognising the particular circumstances of medical transferees, asylum seekers and people who've overstayed their visas, for example.

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

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

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

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

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

Julian Hill (Bruce, Australian Labor Party, Assistant Minister for Citizenship and Multicultural Affairs) Share this | Link to this | Hansard source

I move:

That the debate be adjourned and the resumption of the debate be made an order of the day for a later hour this day.

Ross Vasta (Bonner, Liberal Party) Share this | Link to this | Hansard source

The question is that the debate be adjourned. There being more than one voice calling for a division, in accordance with standing order 133 the division is deferred until the first opportunity the next sitting day.

Debate adjourned.