Immigration and Border Protection

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February 06, 2018

I rise to speak on the Migration Amendment (Prohibiting Items in Immigration Detention Facilities) Bill 2017.

In 2014, Labor supported changes to Section 501 of the Migration Act to strengthen character test provisions and introduce mandatory visa cancellation provisions for noncitizens.

These were important measures to protect Australians and to address legitimate evidence based concerns. Labor continues to support visa cancellations of non-citizens on character and criminal grounds, and their removal from Australia under Section 501 of the Migration Act.

Labor is committed to keeping Australians safe.

Although there is a mixed cohort in immigration detention facilities, it is important to note these are immigration detention centres, not correctional facilities. They are centres where people are held pending the outcome of visa applications or legal challenges, or are awaiting deportation.

As at 31 October 2017, as per evidence provided by the Department, there were 1,264 people in onshore immigration detention in Australia.

More than 60 per cent of the current population in immigration detention are asylum seekers, visa overstayers or people such as backpackers who have breached visa conditions.

It's important to keep these numbers in mind when we talk about what this Bill is intending to do.

These people are not there because their visa has been cancelled on character or criminal grounds. They have not committed criminal offences.

The Bill before the House seeks to amend the Migration Act 1958 to allow the Immigration Minister to determine a 'thing' as prohibited in relation to immigration detention facilities and detainees.

The Minister will be able to determine what is a prohibited thing by a legislative instrument, but that instrument is not subject to parliamentary scrutiny; it is not disallowable.

There is no parliamentary oversight.

The Bill amends search and seizure powers in immigration detention facilities, including the use of detector dogs, for screening of detainees and visitors.

I want to make it clear that Labor agrees that illicit drugs, weapons and child exploitation material should not be in immigration detention facilities and transit centres. They should not be allowed in these places. These items should never have been allowed in these facilities in the first place.

The Immigration Minister has serious questions to answer if he has been sitting on his hands, allowing this to occur unchecked for the last three years that he has been the Minister or during the five years of the Abbott-Turnbull Government.

Of course, Labor would support reasonable measures to improve the good order of immigration detention and transit facilities to improve the safety and security for all detainees, staff and visitors, but the Turnbull Government must get the balance right, put forward well-drafted legislation that doesn't have unintended consequences and seek powers proportionate to the risks.

The Minister and the Prime Minister don't have a good track record when it comes to consulting business, industry or communities about migration legislation.

We saw this with the unintended consequences of the 457 visa changes that sent shock waves through various sectors of the economy.

This poor track record is why Labor referred this Bill to the Senate the Legal and Constitutional Affairs Legislation Committee for Inquiry, to ensure that there were no unintended consequences.

This Minister is very good at pointing the finger and name-calling, but the Minister struggles to back up his claims when asked for evidence.

The Senate Inquiry was the Turnbull Government's opportunity to have an open discussion about the challenges of managing Australia's onshore immigration detention operations, outline any issues and provide evidence of potential risks to staff, visitors and detainees in these facilities.

Instead, what the Minister did - he did what he often does - was cobble together a poorly-drafted Bill and ask for a massive expansion of his own powers, and then he and his Department refused to adequately defend their position during the Senate Inquiry.

There was no evidence given during the Inquiry that the Minister attempted to address potential risks in immigration detention in less restrictive ways or to consider the particular vulnerabilities and differences of the detainee populations.

Instead, he jumped straight to legislation that would grant him unchecked powers.

These concerns are not just held by Labor but also by peak bodies and stakeholders who submitted evidence to the Senate Inquiry, including the Law Council of Australia, the Australian Human Rights Commission, FECCA and many others.

The Senate Inquiry revealed that the Bill in its current form gives the Immigration Minister unnecessarily broad powers, is poorly drafted and has obvious adverse unintended consequences. This is a Minister who wants to grant himself unchecked powers and wants, by this Bill, to avoid parliamentary scrutiny.

Labor are willing to work with the Government to ensure good order of immigration detention facilities, but we do have concerns about how the Minister is managing these facilities already.

Given the sheer number of concerns about this Bill and noting that even members of the Government's own team in the Senate recommended changes to this Bill, Labor will oppose the Bill in its current form.

We'll move a second reading amendment.

We strongly encourage the Government to go back to the drawing board and come up with a better Bill.

They should look at the recommendations of the Senate Inquiry, as well as the concerns raised by the Scrutiny of Bills Committee and the Parliamentary Joint Committee on Human Rights and the more than 80 stakeholders, peak bodies and individuals who made submissions to the first Senate Inquiry, opposing the Bill or raising concerns in relation to its current form.

The Bill contains a new definition for 'immigration detention facility' - it includes immigration detention centres, immigration transit facilities and alternative places of detention. Similarly, there is a new definition for 'prohibited thing'. It includes anything unlawful in a state or territory across Australia, irrespective of the location of the detention centre, which seems reasonable, or - and this is the crux - a thing that 'might be a risk to the health, safety or security of persons in the facility, or to the order of the facility'.

There is a new section that enables the Immigration Minister to determine, by legislative instrument, prohibited things in relation to these immigration detention facilities. The explanatory memorandum to the Bill notes the following:

These things will include illegal things, specifically narcotic drugs and child pornography and things that present a risk within immigration detention facilities including mobile phones and SIM cards …

I note 'child pornography', because the EM should pick up the fact that the views of the Australian Federal Police and other authorities are that you shouldn't use that expression, because it encourages abusers. You should actually use the expression 'child exploitation material'. For future reference, I ask the Minister look at that in the explanatory memorandum.

There is a new section that authorises officers and officers' assistants to search immigration detention facilities without a warrant. The facilities covered include:

(a) accommodation areas;

(b) administrative areas;

(c) common areas;

(d) detainees’ personal effects;

(e) detainees’ rooms;

(f) medical examination areas;

(g) storage areas.There are new powers that authorise officers to seize and dispose of prohibited items, including weapons.

These amendments deal with screening procedures, strip searches, searches in immigration detention and use of detector dogs.

Labor believes the Turnbull Government must take more seriously their duty of care for people detained or working in or visiting Australia's onshore immigration and transit facilities. There is no question about it.

But there are other things that could be prohibited as a result of this Bill and the legislative instrument that avoid all parliamentary scrutiny, including:

(a) mobile phones;

(b) SIM cards;

(c) computers and other electronic devices, such as tablets;

(d) medications or health care supplements, in specified circumstances.

These proposed rules will apply to all detainees, irrespective of their cohort. It won't matter if they're a student who overstays their visa or a person who didn't pass immigration clearance at an airport because they applied for the wrong visa.

The proposed rules apply to everyone, irrespective of the person's circumstances or risk profile.

Labor believes the Department's submission and testimony lacks sufficient evidence to make a case as to why the legislation should be supported in its current form.

There is unprecedented secrecy within the Department of Immigration and Border Protection. The Minister won't release information about what's going on in these centres, and he won't admit he's got things wrong. But he wants to use what's going wrong as justification for the changes.

The Senate Inquiry gave stakeholders who regularly visit asylum seekers and other detainees the chance to explain the impact of the proposed changes and to have their say about the practical effect and implications of the Bill.

Eighty-two submissions were made to the Senate Inquiry. Eighty of them raised significant concerns about the Bill or recommended that the Bill not be passed in its current form - 80 of the 82!

That included the Law Council of Australia, the Australian Human Rights Commission, Legal Aid NSW, FECCA, the Refugee Advice and Casework Service, the Refugee Council of Australia, Rural Australians for Refugees, Australian Lawyers for Human Rights - I could go on and on and on.

Only one submission supported the Bill in its current form, and that was the submission of the Department of Immigration and Border Protection.

The Minister is responsible for everything that goes on in immigration detention via the Border Force. He has responsibility as the Minister.

The management of onshore immigration detention and transit centres is contracted to Serco, which provides security and welfare services; medical services are provided by International Health and Medical Services, or IHMS.

I have met people who work for Serco and IHMS in some of these detention centres. They are good people, they work hard and I believe they should be supported.

They work in these facilities with the best of intentions, but I note neither Serco nor IHMS made a submission to the Senate Inquiry. They didn't make a case as to why their employees would need or want the Minister to have these powers.

Submissions to the Senate Inquiry expressed concerns about how broad the powers included in the Bill were and said they were disproportionate to the stated risk.

Rural Australians for Refugees highlighted that the Bill enables blanket prohibitions on all detainees regardless of their needs, vulnerability or risk profile.

They stated that the Bill 'fails to protect the rights of these groups and requires them to face the same restrictive measures as those who have committed violent crimes and are assessed to be of high risk to self or others'.

The Human Rights Commission outlined the broad nature of the legislation, stating:

… blanket restrictions on the possession of items that do not present an inherent risk to safety or security may not be reasonable, particularly when many of the individuals affected have never used these items in a manner that threatens safety or security.

The Human Rights Commission continued to highlight that the threshold for prohibitions made by the Minister is too low. The Law Council of Australia argued that:

… any number of things could fall within this broad definition, particularly because the provision does not require any standard by which the Minister is required to consider whether something might be a risk, nor is there any guidance on what would constitute a risk to the 'order of the facility'. There is also no guidance on what 'order of the facility' means in this context.

Further, the current Bill would allow items to be prohibited if the Minister is satisfied they 'might' pose a risk to immigration detention facilities.

It was suggested that if pens or pencils were to fall under this low threshold, the Minister could argue for them to be banned in immigration detention facilities.

Labor agrees with the Australian Lawyers for Human Rights, who submitted that legislation 'should always represent an appropriate and proportionate response to the harms being dealt with'.

The Minister previously attempted a blanket ban on mobile phones in immigration detention facilities before the Federal Court granted an injunction in February 2017 to stop guards from confiscating phones from detainees.

The Minister then doubled down on his position, appealed the decision and subsequently lost in August 2017. The courts intervened again against this overreach.

The Government has used this Bill to focus on mobile phones being problematic in immigration detention centres and being used for apparent ill will. The explanatory memorandum actually mentions it:

Evidence indicates that detainees are using mobile phones to coordinate and assist escape efforts …

However, in evidence provided to the Senate Inquiry, the Department could cite only two escape attempts being made with the assistance of mobile phones, on 11 November 2014 and 23 October 2017.

The Department offered no additional information as to how the phones were used or how the phone itself enabled two adults to sneak past staff or over fences.

This is in spite of the fact that during the same period there were 32 instances of successful escapes from immigration detention facilities, involving 36 individuals, and 47 incidences of attempted escape from immigration detention facilities, involving 56 individuals.

Rather than relying on a blanket ban on mobile phones, I suggest it would be more beneficial for the Minister and his Department to focus on preventing people from escaping or attempting to escape from immigration detention facilities by making sure the staff had the best training and were well resourced, the staff-to-detainee ratio was always maintained and the centres had the appropriate infrastructure. How about the Minister do his job and stop trying to do blanket bans?

The Government talks about standover tactics. The Minister has said in relation to mobile phones that 'owners of mobile phones are also being subjected to stand-over tactics'. 

It is one thing to say it is happening; it's quite another thing to prove it.

Despite the Minister's repeated claims, the Department was unable to provide any evidence about these apparent standover tactics.

The Department said, in the evidence they gave to the Inquiry, that they had not received any formal complaints relating to standover tactics—no evidence at all, yet the Minister says it. Just because the Minister says it, doesn't mean it's true.

Rather than addressing the management issues in onshore immigration detention centres by enforcing existing policies, the Minister is simply trying to rewrite a new rule book with this legislation that gives him all the power.

I want to be clear that any standover tactics are unacceptable. That's why policies and procedures already exist to address these behaviours.

Evidence heard during the Senate Inquiry showed access to mobile phones is imperative for detainees to maintain contact with their legal representatives, in addition to external support networks. The president of the Law Council of Australia testified at the Inquiry:

Mobile phones play a significant role in ensuring detainees can access timely legal advice, which is of course a fundamental underpinning of the rule of law …

Labor will always uphold the rule of law whilst understanding how important the work that legal representatives and refugee advocates undertake with respect to onshore detention facilities.

The Refugee Council of Australia submitted that 'it is extremely challenging to work within the tight deadline when … clients are detained in remote detention facilities and do not have access to mobile phones.

RACS, the Refugee Advice & Casework Service, further said that the Bill 'underestimates the difficulties currently faced by people in detention in accessing legal services and the importance of mobile phones in this context'.

During the Senate Inquiry, the Department testified there was sufficient landline access available 24 hours a day across the immigration detention network, stating:

Families and legal representatives have the ability to call the centres at any time, and the centres facilitates those phone calls.

However, in their answer to questions on notice, the Department conceded that only some facilities allow calls 24 hours a day. They continued, saying:

The remaining facilities call-divert to a manned control room after 8pm. However, in the latter case if the call is not an emergency call, Serco receipt a message and pass the message to the detainee the following morning.

This answer corroborates the testimony from Legal Aid New South Wales, who said it was very difficult to contact a detainee at Villawood after 7.15 pm.

Access to legal representation shouldn't be dependent on a message being taken or reliant on an officer within an immigration detention centre determining whether a person's call is an emergency or not, especially when it's up against a court filing deadline.

You could have expected, if the Department and the Minister had thought about this, some less overreaching methods could have addressed any concerns, without the mobile phone blanket ban that the Minister is trying to impose.

Access to justice is crucial, and legal representation is crucial for refugees and asylum seekers.

Even Liberal Senator Ian Macdonald, the chair of the Senate standing committee, thanked the Human Rights Commission's positive approach in suggesting a number of amendments during the Senate Inquiry. Recommendation 2 of the chair's Senate Inquiry report recommends:

… that the Government consider amending the Bill in accordance with the third recommendation of the Australian Human Rights Commission, to ensure that detainees have access to communication facilities that will reasonably meet their needs, and enable timely, and where appropriate, private contact with friends, family, and legal services.

Given this evidence and given the attitude of the chair of the Senate Inquiry, Senator Ian Macdonald from Queensland, Labor made it clear that, in the absence of other appropriate communications options or direct intelligence relating to specific individuals, detainees should be allowed to use mobile phones.

The Department has failed to make the case, as has the Minister, for denying detainees the opportunity to manage their own health, by removing from them the right to their own medication in immigration detention facilities.

In this legislation, the Government is contemplating medications or healthcare supplements as items which may be prohibited by the Minister, in notes to subsection 251(A)(2).

Australian Lawyers for Human Rights commented on the troubling nature of this provision, stating:

… if this Bill becomes law, detained refugees could be arbitrarily deprived of their essential medication.

It is never acceptable for illegal or narcotic substances to be abused. It's never acceptable for those types of substances to be actually allowed in detention facilities. However, detainees should always have the opportunity to manage their own health.

In their dissenting report to the Senate Inquiry, Labor senators recommended the Bill be amended in accordance with the third recommendation of the Law Council of Australia.

This would ensure that medications obtained under prescription, or supplements recommended by health practitioners, are not caught by the provision the Government's contemplating, and that the provision is restricted only to narcotic or restricted substances.

I must highlight that, in the 2014-15 financial year, there were 1,387 instances of contraband being found in immigration detention centres.

This figure increased to 1,947 in the year 2015-16, but it actually went down to 1,709 instances in 2016-17.

This contraband was found by guards and officers in immigration detention facilities with search powers they already have.

They already have them.

Labor is willing to work with the Government to improve search and seizure powers, but they must be clearly defined and have appropriate safeguards.

There's been evidence that proposed amendments to search and seizure powers in this Bill do not have sufficient safeguards. The Law Council of Australia stated:

To extend the power of search to anything which might be a risk to the health, safety or security of person in the facility, or to the order of the facility allows the Minister to declare virtually any kind of item contraband subject to search. A pen or pencil and paper could be in that category.

There are also concerns raised in relation to both strip searches and the use of detector dogs.

Strip searches are sometimes necessary to ensure detainees and staff are kept safe, but it is critical that legislation contains adequate safeguards. I note the Migration Act already includes a power to strip search. The delegation to approve this is given to the deputy commissioner of the Australian Border Force and doesn't include a cavity search.

Labor agrees with the Law Council that all detainees should not be searched unless there is a reasonable suspicion that illegal substances or items are in their possession, and that strip searches are only conducted in exceptional circumstances.

There are vulnerable people in immigration detention in Australia, such as asylum seekers. We've got a moral obligation to treat these people well and to take care of their health.

Rural Australians for Refugees submitted that for many of these individuals, 'seeing dogs during these search processes can bring to mind memories of police raids in countries of origin'.

For too long the Minister has allowed drugs and other substances in immigration detention facilities, and that's the evidence given by the Department.

Labor is willing to work with the Government to strengthen search and seizure powers; however, the measures must be proportionate to the risk, appropriate to the circumstances, and they must be based on evidence.

That Senate Inquiry was not the only Inquiry which has had concerns about the Bill. The bipartisan Senate Standing Committee for the Scrutiny of Bills considered the Bill three times in 2017 due to repeated requests for further information from the Minister about the drafting of the legislation.

They consistently and repeatedly raised concerns about the delegated powers and the ability of the Minister to prohibit items in a non-disallowable legislative instrument.

The committee queried the broad delegation of the administrative powers, which provide that an authorised officer may without warrant conduct a search of a wide range of areas in immigration detention facilities and effectively give an authorised officer the power to use force against a person or property.

The Parliamentary Joint Committee on Human Rights considered the Bill in reports 11 and 13 of 2017. A number of concerned were raised about the Bill's compatibility with various human rights. In regard to the Minister's broad power to declare items as prohibited things, the joint committee stated:

… the scope of the power, and the absence of sufficient safeguards, is such that the power could be exercised in a way that is likely to be incompatible with the right to privacy.

In relation to the broad power to ban mobile phones, computers and other electronic devices, such as tablets, the joint committee said it would 'impermissibly limit detainees' right not to be subjected to arbitrary or unlawful interference with family', and their right to freedom of expression.

Labor does not accept that this Immigration Minister's powers should go unchecked, and we we'll always stand up to the Government when they overreach.

This is not their first failure.

The failure of the Government in relation to issue after issue—whether it's corruption in the Department that's been exposed or whether people who are Australian citizens have been detained—is simply not good enough.

Recently, in 2016-17, two Australian citizens were wrongly detained in immigration for 97 days and 13 days respectively.

An independent investigation into the cases revealed systemic problems in the Minister's management of onshore detention centres. It's similarly not good enough.

It's clear this is a Minister who is a 'tick and flick' Minister, who repeatedly fails to appropriately manage his portfolio and the Department.

We are debating this Bill today because he has failed to adequately manage Australia's onshore immigration detention network.

The Minister has failed to make his case as to why these powers in this Bill are necessary. Instead we have this piece of legislation that is poorly drafted, with powers that are too broad and with unintended consequences.

The Minister wants to give himself unchecked power.

He wants to avoid parliamentary scrutiny.

He's clearly not across the details of his brief.

He's shirked responsibility when he has been held to account.

Remember, this is the same Minister whose Department made asylum seekers living in our community get permission to get a goldfish.

At any given opportunity, this is a Minister who likes to demonise asylum seekers rather than accept responsibility for his own failure.

Given this, we won't support the Bill in its current form.

We will actually keep Australians safe, but it's quite clearly incumbent on this Government to ensure the safety of detainees, staff and visitors in immigration detention and transit facilities.

The Government should go back to where they have come from in terms of this Bill, revisit this issue again and bring it back to us. We'll work with them in a bipartisan way. For this reason, we will not support it. I move:

That all words after "That" be omitted with a view to substituting the following words:

"the House declines to give the Bill a second reading because the Bill as written is too broad, poorly drafted and has unintended consequences".

Labor's position is clear. We won't support the Bill in its current form. Come back to the drawing board. We'll work with you.