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Thursday, 5 April 2001
Page: 26529

Mr RUDDOCK (Minister for Immigration and Multicultural Affairs and Minister for Reconciliation and Aboriginal and Torres Strait Islander Affairs) (10:38 AM) —I move:

That the bill be now read a second time.

The Migration Legislation Amendment (Immigration Detainees) Bill 2001 is an integral part of a range of strategies which the government is introducing to ensure that immigration detention centres are safe environments for all persons within them, be they detainees, visitors or staff.

In this speech, a reference to detention centres includes both immigration reception and processing centres and immigration detention centres.

Since 1999, we have witnessed an unprecedented increase in the number of unauthorised boat arrivals on Australian shores.

People-smuggling has become a major international phenomenon. Sophisticated, highly organised criminal networks ply this lucrative and relatively low risk trade.

People-smuggling is estimated to be worth many billions of dollars a year. The issues surrounding unauthorised arrivals and immigration detention in Australia are complex.

It is a legal requirement in Australia that unlawful non-citizens be detained. This requirement for mandatory detention has bipartisan support, having been first introduced by the Labor government in 1992.

Mandatory detention is tough public policy but it is an essential element in dealing with the complex dilemmas and challenges facing us from unauthorised arrivals organised by people smugglers.

It is sound policy and, indeed, some other countries also facing this issue are strengthening their approach to detention of unlawful arrivals.

When people arrive in Australia unlawfully, we must find out who they are, where they have come from, and why they cannot return to their country of origin. We need to carry out health and character checks.

Many unauthorised arrivals dispose of their documentation before they arrive in Australia. Establishing the identity of these people can take considerable time, but it is essential in order to determine whether Australia owes them protection obligations.

It is also essential to ensure that people are not granted visas and released where they represent a real danger to the community because of security or criminal concerns.

Whilst I have always defended the policy of mandatory detention as part of an overall policy designed to protect the integrity of our borders, I have also always asserted that detention must be humane.

While we are obliged to and do provide suitable accommodation and facilities for detainees, they in turn have a responsibility to behave appropriately.

Increased unauthorised arrivals has meant that the detainee population has grown in number and changed in nature. This has presented new challenges in managing immigration detention centres.

It is apparent from recent incidents at detention centres that many detainees have unrealistic expectations of what would occur on arrival and the processes in Australia. These expectations arise from the misinformation provided to them by people smugglers.

It is both alarming and regrettable that in recent times there have been a number of major incidents of antisocial and violent behaviour at immigration detention centres.

Members will recall that there have been major disturbances at the Woomera, Curtin and Port Hedland immigration reception and processing centres. In fact, yesterday there was a major disturbance at the Curtin immigration reception and processing centre.

There have been violent protests, burning of buildings, assaults on officers and other detainees, and mass escapes.

The violent actions of some detainees have endangered both other detainees and staff, and caused considerable damage to Commonwealth property.

We need enhanced powers to discourage and, where necessary, to more effectively manage this inappropriate behaviour in detention centres.

Whatever its reason, violent and threatening behaviour by immigration detainees, which would be unacceptable in the Australian community, cannot be tolerated in these centres.

We respect the dignity and cultural values and beliefs of detainees, and we expect that they in turn will respect the rights of fellow detainees, staff working at detention centres and the Australian community.

The measures in this bill will provide assistance in ensuring the safety of all persons within detention centres. The bill amends the Migration Act 1958 to:

strengthen the criminal offence of escape from immigration detention and to introduce a new offence relating to the manufacture and possession of weapons in immigration detention;

introduce an additional power to search immigration detainees for weapons or things which may be used to inflict bodily injury or assist in an attempt to escape from detention;

permit searches of immigration detainees held in state or territory prisons or remand centres in accordance with the relevant state or territory laws; and

introduce additional security measures for visitors entering immigration detention centres.

Criminal offences dealing with immigration detainees

There have been many incidents where some detainees have sought to intimidate other detainees, or to incite detainees to damage property or to escape. This has caused significant disruption and uncooperative behaviour.

We have had numerous incidents where detainees have fashioned weapons from materials obtained within detention centres.

Examples include razor blades melted into toothbrushes, a shard of mirror attached to a piece of wood to make a knife, and a ballpoint pen with a needle fastened to its centre.

These objects have only one purpose—to inflict harm or to threaten others. They represent a serious danger to both staff and detainees.

State laws provide some coverage; however, they do not adequately address these circumstances.

The government believes it is highly desirable that there be a uniform offence and maximum penalty applicable to the manufacture, possession, use or distribution of weapons in immigration detention.

The bill seeks to deter such behaviour by introducing such an offence, with a maximum penalty of three years imprisonment.

The bill also increases the maximum penalty for escape from immigration detention from two years to five years imprisonment. This is consistent with the Crimes Act 1914, which contains an offence of escaping from custody other than immigration detention.

In addition, the bill brings forward the Criminal Code offence of inciting or urging the commission of an offence against any law of the Commonwealth. The maximum penalty for this offence depends on the penalty for the offence incited.

Additional power to search detainees

Frequently, detainees have hidden items, such as those I have mentioned, in their clothing or on their person, that have later been used for self-harm, to injure others or to attempt to escape.

Existing search powers do not permit the removal and examination of items of clothing without the detainee's consent.

The inability to examine clothing for concealed weapons is of serious concern. It places all persons in danger, particularly as detention centre staff are unarmed.

I emphasise at the outset that strip searches will not be undertaken as a matter of routine.

There must be strong reasons for undertaking such a search. It is a measure of last resort, to be used only in exceptional circumstances.

A search may only be undertaken where there is a reasonable suspicion that the detainee has a hidden weapon or other thing capable of being used to inflict bodily injury—including to the detainee himself or herself—or to help the detainee or any other detainee to escape.

Before the search is conducted, the detainee will be advised about the nature of the search.

These search provisions have been designed to reflect a reasonable balance between preserving a detainee's dignity and privacy, while providing for the protection of the detainee community as a whole, the centre staff and the Australian community.

I emphasise that the proposed power does not extend to an internal examination of a detainee.

There are many safeguards built into the legislation.

These safeguards and the supporting draft protocol, which will set down directions in relation to such searches, will ensure that the power is not abused and officers are accountable for its use.

The draft protocol, which will be settled in conjunction with the Attorney-General, sets out the principles to be incorporated into a section 499 direction which will be binding on departmental officers.

In addition, the draft protocol will be further articulated and expanded in migration series instructions and operational orders.

I will now mention some of the safeguards contained in the bill.

First, an officer must suspect on reasonable grounds that there is hidden on the detainee a weapon or other thing capable of being used to inflict bodily injury or to help the detainee, or any other detainee, to escape from immigration detention.

That same officer must also have a reasonable suspicion that it is necessary to conduct a strip search to recover the weapon or other thing.

Secondly, specific approval must be sought and obtained before a strip search is conducted.

Only a senior departmental officer specially authorised by the secretary can provide this approval.

It is intended that only senior officers employed outside detention centres will be so authorised. Departmental managers on-site at detention centres will not be able to authorise strip searches.

The senior officer approving the strip search must be satisfied that there are reasonable grounds for conducting the search.

Only a limited number of members of my department's Senior Executive Service and some of my department's state or territory directors will be authorised to approve the conduct of a strip search.

Thirdly, a strip search can only be conducted by an authorised officer.

Before conducting a strip search, the authorised search officer must assure himself or herself that the permission to search has been properly sought and provided.

As an additional safeguard, the senior departmental officer approving the strip search cannot conduct the search.

The draft protocol on the use of the strip search power provides further safeguards, including the provision of information to detainees who are to be strip searched.

The draft protocol also provides that both those authorised to approve a strip search and those authorised to conduct such a search must be given appropriate training.

To ensure accountability written records of all searches must be kept. In addition, I will provide a report twice a year to parliament on use of the power.

As usual, detainees will also have access to both internal and external complaints mechanisms, including the Commonwealth Ombudsman and the Human Rights and Equal Opportunity Commission.

Immigration detainees held in state or territory correctional facilities

Due to serious behavioural problems or other reasons that may threaten the security, or order in immigration detention centres, it is sometimes necessary to hold immigration detainees in state or territory correctional facilities, even if they are not serving custodial sentences. This only occurs as a last resort.

The bill puts beyond doubt the ability of the states and territories to use their legislative powers to search immigration detainees being held in their facilities.

This will ensure that state and territory authorities will be able to apply search powers consistently to all persons being held in their facilities so that the order and security of the prison or remand centre is not compromised.

My department is developing memoranda of understanding with appropriate state and territory authorities governing the transfer and maintenance of immigration detainees in their correctional facilities.

The government will seek to ensure that these memoranda of understanding cover search powers, including appropriate reporting mechanisms, when strip searches are conducted on immigration detainees held in state and territory facilities.

Entry of visitors to immigration detention centres

The bill also introduces additional security measures for visitors entering immigration detention centres. These measures are essential to the effective management of security at detention centres.

There are grounds for concern that some visitors to detention centres might bring into the centre aids for escape.

They could also bring in items, including weapons, which could endanger the safety of detainees or staff, or disrupt the order or security arrangements at the centre.

The bill provides that officers may request visitors to detention centres to walk through screening equipment and to allow things in their possession to pass through screening equipment or to be examined by X-ray.

These screening arrangements are similar to those existing at airports or, indeed, Parliament House, and are not intrusive.

Additionally, an authorised officer can request a person seeking to enter the centre to allow closer inspection of any items in their possession or to leave items at the entrance to the centre for the duration of their visit.

The visitor does not have to comply with any of the requests but, if they do not comply, can be refused entry.


The government cannot ignore the violent and threatening actions of some immigration detainees. The government has a duty of care to all detainees and other persons who are in its detention centres.

The measures contained in this bill serve to protect all members of the detainee population, including detainees who may intend to harm themselves.

Criminal action in Australia by any person is unacceptable. The actions of a number of detainees, such as assaults, arson, riots and escapes will not be accepted by the government.

We have taken great care to strengthen the legislative tools available to manage immigration detention, while building in safeguards against abuse.

Before I conclude, there is one more matter that I would like to mention.

When I tabled the Flood report on 27 February, I announced the establishment of an Immigration Detention Advisory Group to assist me in the consideration of detention matters.

The group is chaired by the Hon. John Hodges, a former Minister for Immigration and Ethnic Affairs.

I am pleased to announce that the group is holding its first meeting here in Canberra today.

I believe that group will provide valuable assistance to the government on detention policy issues.

I commend the bill to the House and hope that, in the context of the very difficult issues we are dealing with, the more recent incidents we have seen, it will receive a cooperative and speedy passage. I table the explanatory memorandum.

Debate (on motion by Mr Laurie Ferguson) adjourned.