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Legal and Constitutional Affairs Legislation Committee—Senate Standing—Migration Amendment (Prohibiting Items in Immigration Detention Facilities) Bill 2020 [Provisions]—Report, dated August 2020


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The Senate

Legal and Constitutional Affairs Legislation Committee

Migration Amendment (Prohibiting Items in Immigration Detention Facilities) Bill 2020

© Commonwealth of Australia 2020

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iii

Members

Chair Senator Amanda Stoker LP, QLD

Deputy Chair Senator the Hon Kim Carr ALP, VIC

Members Senator the Hon Sarah Henderson LP, VIC

Senator Claire Chandler LP, TAS

Senator Nick McKim AG, TAS

Senator Anthony Chisholm ALP, QLD

Committee Secretariat Sophie Dunstone, Committee Secretary Sofia Moffett, Research Officer Brooke Gay, Administrative Officer

PO Box 6100 Phone: 02 6277 3560

Parliament House Fax: 02 6277 5794

Canberra ACT 2600 Email: legcon.sen@aph.gov.au

v

Contents

Members ............................................................................................................................................. iii

List of recommendations ................................................................................................................ vii

Chapter 1—Introduction .................................................................................................................... 1

Chapter 2—Key issues...................................................................................................................... 13

Labor Party Senators' dissenting report ........................................................................................ 35

Australian Greens dissenting report ............................................................................................. 49

Appendix 1—Public hearing ........................................................................................................... 67

Appendix 2—Submissions and additional information ........................................................... 69

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List of recommendations

Recommendation 1

2.74 The committee recommends that the government make administrative arrangements that ensure 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.

Recommendation 2

2.75 The committee recommends that the Senate pass the bill.

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Chapter 1 Introduction

Introduction 1.1 On 14 May 2020, the Senate referred the provisions of the Migration Amendment (Prohibiting Items in Immigration Detention Facilities) Bill 2020 to the Legal and Constitutional Affairs Legislation Committee (the committee)

for inquiry and report by 5 August 2020.

1.2 The bill was referred to the committee following a recommendation of the Selection of Bills Committee. Appendix 1 to that report provided the following reasons for referral:

Banning of items in administrative detention. This is a legacy bill that the [Government] left on the notice paper for years. There is a very high likelihood there will be changes to the legislation, which will need substantial reconsideration by committee.

Concerns regarding human rights, and rights of the child (will provide for: prohibition of items in immigration detention facilities; searches without warrants; extra screening and seizure powers; and use of dogs for screening and searching detainees).1

Conduct of inquiry 1.3 The committee advertised the inquiry on its website and wrote directly to a number of organisations inviting submissions by 11 June 2020. The committee received 135 submissions, listed at Appendix 1. The committee held a public

hearing in Canberra on Friday, 3 July 2020. A list of witnesses is provided at Appendix 2.

1.4 Questions on notice and other material received by the committee are listed at Appendix 2. Submissions and the Hansard transcript of evidence may be accessed through the committee website.

Acknowledgements 1.5 The committee thanks the organisations and individuals who gave evidence at the public hearing as well as those who made written submissions.

Structure of this report 1.6 The report comprises two chapters as follows:

 Chapter 1 outlines the administrative details of the inquiry, background to the inquiry and the key provisions of the bill.

1 Selection of Bills Committee, Report No. 4 of 2020, 14 May 2020, Appendix 1.

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 Chapter 2 explores the key issues raised in evidence and provides the committee's view.

Purpose of the bill 1.7 The bill was introduced into the House of Representatives on 14 May 2020 by the Acting Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, the Hon Alan Tudge MP.2 In his Second Reading Speech,

the minister stated that since strengthening section 501 of the Migration Act 1958 (the Migration Act), the government has cancelled the visas of more than 4,600 people who have committed criminal offences in Australia. The effect is that '[t]oday, a large proportion of the detention population are unlawful noncitizens who have criminal histories'. 3 This includes individuals with histories of:

'child sex offences or violent crimes, including murder and domestic violence. Others have…significant histories of drug-related offences or proven links to criminal organisations, such as outlaw motorcycle gangs and other organised crime groups'.4

1.8 The minister stated that 'some of these individuals seek to continue criminal activities and associations while in detention centres'. The challenge that has subsequently arisen, the minister explained, is to address the 'continuing incursion, distribution and use of illegal drugs and contraband items, and associated criminal activity'.5 The minister stated that at present, the Australian Border Force (ABF) does not have the power to remove illegal or dangerous items from immigration detention facilities, and therefore is unable to fully maintain the safety, security and good order of immigration detention facilities.

1.9 Therefore, the purpose of this legislation is to:

…provide the legislative basis to enable ABF officers to effectively combat the incursion, distribution, and use of contraband that pose a significant risk to the safety and security of the immigration detention environment.6

1.10 The Department of Home Affairs (the department) submitted that the bill would amend the Migration Act 1958 (the Migration Act) to:

2 House of Representatives Votes and Proceedings, No. 55, 14 May 2020, p. 887.

3 The Hon Alan Tudge MP, Acting Minister for Immigration, Citizenship, Migrant Services and

Multicultural Affairs, House of Representatives Hansard, 14 May 2020, p. 3441.

4 The Hon Alan Tudge MP, Acting Minister for Immigration, Citizenship, Migrant Services and

Multicultural Affairs, House of Representatives Hansard, 14 May 2020, pp. 3441-3442.

5 The Hon Alan Tudge MP, Acting Minister for Immigration, Citizenship, Migrant Services and

Multicultural Affairs, House of Representatives Hansard, 14 May 2020, p. 3442.

6 The Hon Alan Tudge MP, Acting Minister for Immigration, Citizenship, Migrant Services and

Multicultural Affairs, House of Representatives Hansard, 14 May 2020, p. 3441.

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…determine 'prohibited things' and strengthen the powers of the Department of Home Affairs to search for and seize 'prohibited things' from detainees in immigration detention facilities. The amendments also clarify the intended operation of the search and seizure provisions, following the Full Federal Court decision in ARJ v Minister for Immigration and Border Protection [2018] FCAFC 98.7

1.11 The department stated that the bill:

is intended to further support the provision of a safe and secure environment for people accommodated in, visiting or working in an immigration detention facility. The bill seeks to strike a balance between the individual rights of detainees and the protection of the community, facility staff, visitors and other detainees.8

Key provisions of the bill 1.12 The proposed amendments to the Migration Act are contained in Schedule 1 to the bill.

1.13 The explanatory memorandum states that the bill would amend the Migration Act to:

 insert new definitions under subsection 5(1) to define section 273 detention centres and places approved in writing by the minister under subparagraph (b)(v) of the definition of immigration detention in subsection 5(1) of the Migration Act (otherwise known as Alternative Places of Detention (APODs)) collectively as ‘immigration detention facilities’, and to define a ‘prohibited thing’;

 insert new section 251A to enable the minister to determine, by disallowable legislative instrument, prohibited things in relation to immigration detention facilities and detainees (whether or not they are in an immigration detention facility). These things may include illegal things [that is, things prohibited by law in a place or places of Australia], specifically controlled drugs, and things that present a risk within immigration detention facilities including mobile phones, SIM cards and internet-capable devices;

 insert new sections 252BA and 252BB to allow authorised officers and authorised officers’ assistants to search, without a warrant, immigration detention facilities operated by or on behalf of the Commonwealth, including accommodation areas, administrative areas, common areas, detainees’ rooms, detainees’ personal effects, medical examination areas, and storage areas, and to allow the use of detector dogs to conduct these searches;

 clarify and strengthen the search and seizure powers in relation to detainees in sections 252, 252AA, 252A, 252BA, 252C and 252CA;

7 Department of Home Affairs, Submission 69, p. 3.

8 Department of Home Affairs, Committee Hansard, p 23.

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 strengthen the powers in section 252G in relation to a person about to enter an immigration detention facility operated by or on behalf of the Commonwealth to expressly allow an authorised officer to screen and search for prohibited things (which may include controlled drugs); and  allow the minister to issue binding written directions to officers in relation

to the exercise of their seizure powers.9

Power to determine that an item is a 'prohibited thing' 1.14 Proposed subsection 251A(2) would provide the minister with the power to determine by a disallowable legislative instrument10 that an item is a 'prohibited thing' if the minister is satisfied that:

(a) possession of the thing is prohibited by law in a place or places in Australia; or (b) possession or use of the thing in an immigration detention facility might be a risk to the health, safety or security of persons in the facility or to the

order of the facility.11

1.15 'Prohibited thing' is defined by proposed subsection 251A(1) as:

(a) Both:

(i) possession of the thing is unlawful because of a law of the Commonwealth, or a law of the State or Territory in which the person is detained or in which the facility is located; and (ii) the thing is determined under paragraph (2)(a); or

(b) The thing is determined under paragraph (2)(b).

1.16 Examples provided under subsections 251A(1) and (2) state that the following items may be determined to be prohibited things 'if the Minister is satisfied that they pose a risk mentioned in paragraph (b)':

(a) mobile phones; (b) SIM cards; (c) computers and other electronic devices designed to be capable of being connected to the internet.

1.17 The explanatory memorandum identifies that the minister would be able to make a determination to prohibit the possession of controlled drugs under the amendments for the purposes of proposed subsection 251A(1). 12

9 Explanatory memorandum to the Migration Amendment (Prohibiting Items in Immigration

Detention Facilities) Bill 2020 (explanatory memorandum), p. 3.

10 By operation of proposed subsection 251A(4), which states that section 42 of the Legislation Act

2003 (disallowance of legislative instruments) applies to legislative instruments made under this provision: Migration Amendment (Prohibiting Items in Immigration Detention Facilities) Bill 2020, Item 2.

11 Migration Amendment (Prohibiting Items in Immigration Detention Facilities) Bill 2020, Item 2.

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1.18 Proposed subsection 251(3) states that medication or health care supplements are not prohibited things if they have been prescribed or supplied for the person's individual use by a health service provider authorised for the purpose by the person in charge of the facility.

1.19 The bill states that this subsection is applicable 'in relation to a person in detention (whether or not the person is detained in an immigration detention facility), or in relation to an immigration detention facility'. The explanatory memorandum clarifies that detainees who are the subject of a residence determination would not be subject to the search and seizure provisions in relation to prohibited items.13

Search and seizure powers 1.20 The bill contains expanded powers for authorised officers to screen, search and seize prohibited things in immigration detention facilities in relation.

1.21 Proposed subsection 251B(1) provides that an authorised officer may conduct a search for a thing under proposed sections 252 (of detainees and certain non-citizens) or 252BA (of immigration detention facilities) whether or not the thing is visible to the authorised officer immediately prior to the search of the person or the facility, and, if the thing is not visible to the authorised officer at that time, whether or not the thing had been intentionally concealed. Similarly, proposed subsection 251B(2) provides the power for authorised officers to conduct a screening procedure or strip search of a detainee for a thing, whether or not that thing had been intentionally concealed prior to the commencement of the search. Authorised officers may seize things found in the course of such procedures by operation of proposed subsections 251B(3) and 251B(4).

1.22 Proposed subsection 251B(6) would vest in the minister the power to direct authorised officers to seize a prohibited thing.14 Instruments made under this subsection would not be disallowable.15 The explanatory memorandum states that this power would:

allow the Department to implement, for example, a targeted, intelligence-led, risk-based approach in relation to the seizure of mobile phones, SIM cards and other prohibited things from detainees in facilities specified in a binding Ministerial direction, based on risk assessments and operational security.16

12 Explanatory memorandum to the Migration Amendment (Prohibiting Items in Immigration

Detention Facilities) Bill 2020 (explanatory memorandum), p. 2.

13 Explanatory memorandum, p. 7.

14 Migration Amendment (Prohibiting Items in Immigration Detention Facilities) Bill 2020, Item 2.

15 Explanatory memorandum, p. 13.

16 Explanatory memorandum, p. 13.

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1.23 The proposed amendments to section 252 would expand the existing powers to include the power to search for and seize a prohibited thing. 17 Proposed subsection 252(2) provides that an authorised officer may conduct a search of a person's clothing and property for any of the items listed above without a warrant and whether or not that officer has a reasonable suspicion that the person has such a thing on their body, in their clothing or in their property.18 Under proposed subsection 252(4A), prohibited items could not be seized from detainees subject to a residence determination who are residing at the place specified in that determination.19

1.24 Proposed section 252AA expands the existing power for authorised officers to conduct a screening procedure without a warrant for prohibited things in addition to items that may be a weapon or escape aid.20

1.25 The operation of proposed section 252A would empower authorised persons to conduct strip searches without a warrant for prohibited things, as well as weapons and escape aids as currently constructed.21 Proposed subsection 252A(3)(a) requires that an authorised officer must suspect on 'reasonable grounds' that any items of this nature are on the body, in the clothing or in the possession of a detainee for a strip search to be conducted.22 Proposed subsection 252(1)(j) would require that strip search 'must not involve the removal of more items of clothing or more visual inspection, than the authorised officer conducting the search believes on reasonable grounds to be necessary'.23

1.26 Proposed subsections 252BA(1) and (2) would provide authorised officers with a clear framework to conduct searches for weapons, escape aids and prohibited things in common areas, subsuming the current regime which relies on limited bases to search for items that may pose a risk to the safety and security of detainees and others.24 The power to search facilities would extend to accommodation, administration and common areas, detainees' personal

17 These powers would be in addition to those presently available, namely to search for and seize

items that may be 'visa cancellation evidence', a weapon or any other item that may be used to inflict bodily injury, or may be used to aid escape from immigration detention: explanatory memorandum, pp. 13-14.

18 Migration Amendment (Prohibiting Items in Immigration Detention Facilities) Bill 2020, Item 4.

19 Migration Amendment (Prohibiting Items in Immigration Detention Facilities) Bill 2020, Item 5.

20 Migration Amendment (Prohibiting Items in Immigration Detention Facilities) Bill 2020, Item 8.

21 Migration Amendment (Prohibiting Items in Immigration Detention Facilities) Bill 2020, Item 11.

22 Migration Amendment (Prohibiting Items in Immigration Detention Facilities) Bill 2020, Item 14.

23 Migration Amendment (Prohibiting Items in Immigration Detention Facilities) Bill 2020, Item 17.

24 Explanatory memorandum, p. 22.

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effects and rooms, as well as medical examination and storage areas.25 The explanatory memorandum explains that these provisions would not apply to non-facility based APODs, including hotels, motels, schools or hospitals.26 Proposed subsection 252BA(3) states that such a search may be conducted whether or not the authorised officer has reasonable suspicion that there is such a thing at the facility.

1.27 Proposed subsection 252BA(4) states that an authorised officer may use a dog in conducting a search.27 The explanatory memorandum states that a dog cannot be used to search detainees or goods in their possession, or people entering an immigration detention facility.28

1.28 The bill proposes to include a new section 252BB, which would allow authorised persons to be assisted by others while undertaking a search 'if that assistance is necessary and reasonable'. An authorised officer's assistant must follow the directions of the authorised officer, but may exercise any of the powers or functions of the authorised officer.29

Background

Previous iteration of the bill 1.29 The Migration Amendment (Prohibiting Items in Immigration Detention Facilities) Bill 2017 (the 2017 bill) was introduced to the House of Representatives on 13 September 2017 and passed by that chamber on

7 February 2018. The Senate commenced consideration of the 2017 bill on 8 February 2018, but did not progress past the second reading stage and ultimately lapsed at the end of the 45th Parliament.

1.30 The current bill substantially mirrors the 2017 bill and incorporates a number of suggested amendments that arose out of committee inquiries into its provisions, including:

 allowing legislative instruments made by the minister to prohibit things to be subject to disallowance in proposed section 251A;  excluding medication and health care supplements from the definition of a 'prohibited thing' if it has been prescribed or supplied for the person's

individual use by a health service provider authorised for the purpose by the person in charge of the facility in subsection 251A (3);

25 Migration Amendment (Prohibiting Items in Immigration Detention Facilities) Bill 2020, Item 19.

26 Explanatory memorandum, p. 22.

27 Migration Amendment (Prohibiting Items in Immigration Detention Facilities) Bill 2020, Item 19.

28 Explanatory memorandum, p. 23.

29 Migration Amendment (Prohibiting Items in Immigration Detention Facilities) Bill 2020, Item 19.

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 the creation of a new power for the minister to issue binding written directions to officers to exercise their seizure powers in subsection 251B (6);  limitation on the use of detection dogs to searches of immigration detention facilities, rather than in the course of screening procedures of persons; and  the preclusion of individuals covered by a residence determination (in

community detention) from being subject to the amendments.

1.31 The provisions of the 2017 bill were referred to this committee on 14 September 2017 for inquiry and report by 16 November 2017. The committee made three recommendations:

(a) that the department provide a central information registry regarding the status and location of immigration detainees in order to facilitate greater ease of communication with families, legal representatives and advocates; (b) 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; and (c) subject to the preceding recommendations, that the Senate pass the bill.30

1.32 The Australian Labor Party and the Australian Greens both presented dissenting reports. The former made six recommendations, proposing amendments to the bill and, subject to the incorporation of those amendments, that the bill ultimately be passed. The latter recommended that the bill not be passed.

Consideration by the Full Court of the Federal Court of Australia 1.33 The Full Court of the Federal Court of Australia considered the issue of whether or not a blanket ban on mobile phones in immigration detention centres was invalid in ARJ17 v Minister for Immigration and Border Protection

[2018] FCAFC 98. In that case, the applicant challenged a policy that was created by decisions of the Secretary of the then Department of Immigration and Border Protection in 2016. 31 The effect of this was to extend a pre-existing policy 'prohibiting all illegal maritime arrival detainees from possessing and using mobile phones in detention' to all detainees.32 The Court ultimately held

30 Senate Legal and Constitutional Affairs Legislation Committee, Migration Amendment (Prohibiting

Items in Immigration Detention Facilities) Bill 2017 [Provisions], November 2017, p. vii.

31 The Court noted that the policy was created by two decisions, the first, made on 27 May 2016 was

attributable to the Secretary. The second, made on 21 November 2016, was not clearly attributable: [2018] FCAFC 98 [8].

32 [2018] FCAFC 98 [10]. In its decision, the Court referred to an internal minute prepared by staff of

the Australian Border Force in earlier 2016 which noted that both types of detainees were increasingly being co-located, leading to inconsistency in their treatment, and that serious risks had been identified as a result: [2018] FCAFC 98 [9].

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that the policy was invalid on the ground that it was not authorised by any provision of the Act.33

1.34 The explanatory memorandum to the bill explicitly states that it addresses the decision of the Court in ARJ17 v Minister for Immigration and Border Protection.34

Consideration by other committees

Senate Standing Committee for the Scrutiny of Bills 1.35 The Senate Standing Committee for the Scrutiny of Bills considered the bill in Scrutiny Digest No. 7/20. The committee raised concerns about the limited reasoning offered in the explanatory memorandum to justify the various

expansions of powers suggested under the Act. In particular, the committee has requested further advice from the minister as to:

 why it is necessary and appropriate to extend the existing powers for the search and seizure of items in immigration detention facilities, including by allowing the use of force, noting that doing so may trespass on the personal rights and liberties of all detainees, including those detainees that are not 'higher risk' and have never been convicted of an offence;35

 why it is considered necessary and appropriate to allow the minister to determine, by legislative instrument, what things are to be prohibited in immigration detention facilities; 36

 whether the bill can be amended to include additional high-level guidance regarding when the power in subsection 251A(2)37 may be exercised, including providing a definition for 'order of the facility';38

 why it is considered necessary and appropriate to provide the minister with broad discretionary powers to require an authorised officer to exercise seizure powers via non-disallowable legislative instrument [that is, binding written directions] in circumstances where there is limited guidance on the face of the primary legislation as to when the powers may be exercised;39

33 [2018] FCAFC 98 [97], [111]. In his judgment, Rangiah J agreed with the findings of Rares and Flick

JJ, and further concluded that the policy was inconsistent with the discretionary powers conferred under section 252 of the Act, and was therefore invalid: [2018] FCAFC 98 [133].

34 Explanatory memorandum, p. 3

35 Senate Standing Committee for the Scrutiny of Bills, Scrutiny Digest 7 of 2020, June 2020, p. 18.

36 Senate Standing Committee for the Scrutiny of Bills, Scrutiny Digest 7 of 2020, June 2020, p. 19.

37 This section would empower the minister to determine by legislative instrument whether an item

is a 'prohibited thing'.

38 Senate Standing Committee for the Scrutiny of Bills, Scrutiny Digest 7 of 2020, June 2020, p. 19.

39 Senate Standing Committee for the Scrutiny of Bills, Scrutiny Digest 7 of 2020, June 2020, p. 20

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 who it is intended will be authorised as an 'authorised officer' and an 'authorised officer's assistant' to exercise coercive powers and whether these will include non-government employees;40  why it is necessary to confer coercive powers on 'other persons' to assist an

authorised person and how such persons are to be appointed;41 and  what training and qualifications will be required of persons conferred with these powers, and why the bill does not provide any legislative guidance

about the appropriate training and qualifications required of authorised officers and assistants.42

1.36 At the time of writing, the minister's response had not been published.

Parliamentary Joint Committee on Human Rights (PJCHR) 1.37 The Parliamentary Joint Committee on Human Rights (PJCHR) considered the bill in Report 7 of 2020, which was tabled on 17 June 2020.

1.38 The committee noted that the proposed amendments are designed to provide a safe and secure environment for staff, detainees and visitors to immigration detention facilities and therefore would likely promote the right to security of the person.43 It has sought further information from the minister in regards to two potential limitations on human rights to assist the committee in determining whether they are reasonable, necessary and proportionate:

 the effect of ministerial determinations to prohibit detainees from having access to certain things will likely engage and may limit the rights to privacy, protection of the family and freedom of expression;44

 the search and seizure powers under the bill may engage the prohibition on torture, cruel, inhuman and degrading treatment or punishment and the right to humane treatment in detention. They may also engage and limit the rights to privacy and the rights of the child.45

1.39 In respect of both of these concerns, the committee has sought the minister's advice to determine whether these possible limitations on human rights are reasonable, necessary and proportionate.

40 Senate Standing Committee for the Scrutiny of Bills, Scrutiny Digest 7 of 2020, June 2020, p. 21.

41 Senate Standing Committee for the Scrutiny of Bills, Scrutiny Digest 7 of 2020, June 2020, p. 21.

42 Senate Standing Committee for the Scrutiny of Bills, Scrutiny Digest 7 of 2020, June 2020, p. 21.

43 Parliamentary Joint Committee on Human Rights, Human Rights Scrutiny Report 7 of 2020, June

2020, pp. 76, 85.

44 Parliamentary Joint Committee on Human Rights, Human Rights Scrutiny Report 7 of 2020, June

2020, p. 76.

45 Parliamentary Joint Committee on Human Rights, Human Rights Scrutiny Report 7 of 2020, June

2020, pp. 85-86.

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1.40 At the time of presenting this report, the minister's response had not been published.

Financial impact 1.41 The explanatory memorandum states that the amendments will have no financial impact.46

Note on references 1.42 In this report, references to Committee Hansard are to proof transcripts. Page numbers may vary between proof and official transcripts.

46 Explanatory memorandum, p. 4.

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Chapter 2 Key issues

2.1 This chapter outlines key issues raised during the course of the inquiry, as follows:

 the need for the bill;  the role of ministerial discretion;  mobile phones in immigration detention facilities;  expanded search and seizure powers;  constitutional concerns; and  protections and oversight.

2.2 The chapter concludes by outlining the committee's view.

The need for the bill 2.3 During the course of the inquiry the Department of Home Affairs (the department) and Serco argued that the bill is necessary due to the changing face of the immigration detention cohort and the nature and adequacy of the

existing powers available to staff in immigration detention facilities. These issues are considered in the following sections.

The changing cohort and risk profile of immigration detainees 2.4 In his second reading speech, the Acting Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, the Hon Alan Tudge MP stated that the strengthening of section 501 of the Migration Act has

resulted in a 'significant increase in the number of detainees with criminal histories in…immigration detention facilities. Today, a large proportion of the detention population are unlawful noncitizens who have criminal histories'.1

2.5 The department advised the committee that as of 31 March 2020, there were 1,373 people in immigration detention. Of that number, 862 (63 per cent) have a criminal history and 362 (42 per cent) have histories of drug-related offences.2 Other detainees' criminal histories include convictions relating to outlaw motorcycle gangs, organised crime groups and child paedophilia.3

2.6 Serco highlighted the change in the immigration detention cohort in the last five years, stating:

1 The Hon Alan Tudge MP, Acting Minister for Immigration, Citizenship, Migrant Services and

Multicultural Affairs, House of Representatives Hansard, 14 May 2020, p. 3441.

2 Mrs Claire Rees, Acting Group Manager, Immigration Detention, Australian Border Force,

Committee Hansard, 3 July 2020, p. 25.

3 Serco Asia Pacific (Serco), Submission 22, p. 3.

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Approximately 14 per cent of people in detention were categorised as high or extreme risk in January 2015, today 74 per cent per cent of the detainee population are categorised as high or extreme-risk individuals (April 2020). A significant number of the detention population have been transferred from a correctional facility.4

2.7 The changing cohort of immigration detainees was acknowledged by the Australian Human Rights Commission (AHRC).5 The AHRC noted, however, that the immigration detention cohort 'includes people with a range of risk profiles', from individuals with 'a long history of serious criminal convictions', to others who 'have committed low-level offences', and those who 'have never been convicted or even accused of any offence'.6

2.8 The AHRC and the Commonwealth Ombudsman raised concerns about how risk is assessed in immigration detention. The AHRC, referring to its report entitled Use of force in immigration detention,7 questioned the rigour and categorisation of conduct in the data used by the department.8 Similar findings were echoed in the Commonwealth Ombudsman's report Immigration Detention Oversight: Review of the Ombudsman's Activities in Overseeing Immigration Detention January to June 2019.9

2.9 However, both agencies identified that the risk assessment process is subject to review and oversight. The AHRC noted that the department had commissioned an independent review by an external consultant into the risk assessment mechanism,10 and in its Use of force in immigration detention report, the AHRC made a number of recommendations relating to it.11 Further, the Commonwealth Ombudsman explained to the committee in an answer to a question on notice that it has some oversight of these risk assessments:

…we review approximately 10 - 15 per cent of the risk assessments during each inspection and make an assessment of the validity of the risk rating based on the evidence available to the analyst at the time. On occasions, we identify ratings that we consider are too high, and we make

4 Serco, Submission 22, p. 3.

5 Commonwealth Ombudsman, answers to questions on notice, 3 July 2020 (received 20 July 2020).

6 Australian Human Rights Commission (AHRC), Submission 26, p. 4.

7 [2019] AusHRC 130.

8 Mr Edward Santow, Human Rights Commissioner, Australian Human Rights Commission,

Committee Hansard, 3 July 2020, pp. 15, 19.

9 Commonwealth Ombudsman, Immigration Detention Oversight: Review of the Ombudsman's

Activities in Overseeing Immigration Detention January to June 2019, February 2020.

10 [2019] AusHRC 130, p. 41.

11 [2019] AusHRC 130, p. 17-18.

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recommendations or suggestions to review or change those ratings to more accurately reflect detainee behaviour.12

2.10 The department stated that the changing nature of the cohort within immigration detention facilities has resulted in 'an increase in behaviour of concern'.13 The department observed that controlled drugs are being introduced to detention facilities by visitors, through mail or in person.14 The department referred to an occasion where controlled drugs were thrown into a facility. Officers were able to recover part, but not all of those drugs. It further stated that it has knowledge of drug use (including supply) in two facilities.15 The department informed the committee that:

The current limitations mean that, when we believe detainees may have drugs, we're unable to source and search and find those drugs and take them out of circulation within the facility. That remains an ongoing occurrence that presents a significant concern.16

2.11 The department referred to a number of other activities occurring in immigration detention facilities that have raised concerns, including:

 the abuse of prescription medication;  the use of mobile phones to coordinate escape efforts, bring drugs into facilities and organise criminal activities; and  the filming or photographing of staff in detention facilities, which has

subsequently been transmitted outside of facilities and uploaded onto social media. 17

2.12 Serco echoed the department's position and noted the impact that the nefarious use of items that are the subject of the bill has on detainees and staff.18 Serco submitted that a more recent development in immigration detention centres is the collection of information about staff members and the dissemination of it across social media platforms. Serco stated that this can result in intimidation of staff by detainees, and referred to a number of incidents where staff members' families have been subjected to harassment.19 Serco reported that in 2019, four workers compensation claims and 60 reports

12 Commonwealth Ombudsman, answers to questions on notice, 3 July 2020 (received 20 July 2020).

13 Mr Andrew Kefford PSM, Acting Deputy Secretary, Immigration and Settlement Services,

Department of Home Affairs, Committee Hansard, 3 July 2020, p. 23; Mrs Claire Rees, Committee Hansard, 3 July 2020, p. 24.

14 Mr Andrew Kefford PSM, Committee Hansard, 3 July 2020, p. 24.

15 Mrs Claire Rees, Committee Hansard, 3 July 2020, pp. 23-24.

16 Mrs Claire Rees, Committee Hansard, 3 July 2020, p. 24.

17 Mr Andrew Kefford PSM, Committee Hansard, 3 July 2020, p. 23.

18 Serco, Submission 22, p. 3.

19 Serco, Submission 22, p. 3.

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arose out of incidents of this kind. There have also been a number of proceedings brought before Victorian and New South Wales courts arising out of the posting of prejudicial and often slanderous material on social media websites via mobile phones.20

2.13 The department and Serco both emphasised that the changing cohort of immigration detainees and the resultant increase in disruptive behaviours warrant the introduction of the broadened search and seizure framework as proposed by the bill.21

The adequacy of current measures 2.14 A number of submitters, including the Law Council of Australia (the Law Council),22 Legal Aid NSW,23 the Visa Cancellations Working Group24 and the Refugee Council of Australia25 refuted the arguments by the department and

Serco that the bill is necessary. Instead, they argued that the existing powers available to the department, in conjunction with those available to local law enforcement agencies, are adequate to address the concerns raised by the change in the cohort and the associated risk profile of detainees.26

2.15 The Law Council submitted that the Migration Act already provides authorised officers the power to search, screen and strip search detainees, without a warrant, for items which may constitute a weapon or escape aid (including a thing capable of being used as a weapon or escape aid). These powers, the Law Council stated, permit authorised officers to use such force as is reasonably necessary, and to seize such items.27 The Law Council suggested that where criminal activity occurs in immigration detention centres, the police should be notified and standard criminal law processes followed:28

The Law Council suggests that police should be appropriately resourced to carry out their normal law enforcement functions. These include searching

20 Serco, Submission 22, p. 4.

21 Mr Andrew Kefford PSM, Committee Hansard, 3 July 2020, p. 23; Serco, Submission 22, p. 3.

22 Ms Pauline Wright, President, Law Council of Australia, Committee Hansard, 3 July 2020, p. 1.

23 Ms Katie Wrigley, Senior Solicitor Immigration Law, Legal Aid NSW, Committee Hansard, 3 July

2020, p. 2

24 Visa Cancellations Working Group, Submission 89.1, pp. 2-4; Ms Hannah Dickinson, Chair, Visa

Cancellations Working Group, Committee Hansard, pp. 11-12.

25 Refugee Council of Australia, Submission 27, p. 4.

26 See also, Ms Sahar Okhovat, Senior Policy Officer, Refugee Council of Australia, Committee

Hansard, p. 12; Kaldor Centre for International Refugee Law, Submission 23, p. 5;

27 Law Council of Australia, Submission 64, p. 5.

28 Law Council of Australia, Submission 64, p. 5.

17

for and seizing evidential material which may be used to commit a criminal offence. Police are well trained to carry out this role.29

2.16 The department informed the committee that current legislative framework for undertaking search and seizure operations is both incomplete and inadequate to address the types of threats to security and safety currently experienced in immigration detention facilities. It stated that the present legislative regime does not empower officers to search for and seize items in common areas. To do so, officers must rely on common law responsibilities as the occupier and owner and under duty of care.30 The Commonwealth Ombudsman expressed support for a clear legislative framework for the operation of immigration detention centres, and cautioned against the reliance on common law powers in these contexts.31

2.17 The department outlined the powers currently available under section 252 of the Migration Act.32 The department described these powers as 'inadequate' and 'a real risk to good order and the safety and security of immigration detention facilities, detainees and staff', 33 identifying four examples of incidents that might occur where, under the current provisions, officers would be unable to act:

 A detainee downloads extremist material on his iPad and is showing it to other detainees. The ABF is powerless to confiscate the detainee’s iPad.  ABF officers see a visitor hand over a bag containing a white substance

to a detainee. The detainee places the bag in his pocket. The ABF is powerless to search the detainee for the suspected drugs.  A convicted child sex offender who is looking at child abuse material on his phone in plain sight cannot have his phone removed.  A detainee uploads a photo to social media of a contracted medical

officer falsely accusing her of criminal acts. The comments on the post include abusive and violent messages towards the medical officer. The ABF is powerless to remove the detainee’s internet enabled devices.34

2.18 At the public hearing, the department further described circumstances in which the current powers do not permit officers to undertake action to preserve the safety and good order of immigration detention facilities:

29 Ms Pauline Wright, Committee Hansard, 3 July 2020, p. 1.

30 Ms Pip de Veau, General Counsel, Department of Home Affairs, Committee Hansard, 3 July 2020,

p. 24.

31 Mr Michael Manthorpe PSM, Commonwealth Ombudsman, Committee Hansard, 3 July 2020, p. 17.

32 Department of Home Affairs, Submission 69, p. 5.

33 Mr Andrew Kefford PSM, Committee Hansard, p. 23.

34 Department of Home Affairs, Submission 69, p. 7.

18

The current provisions only allowed search and seizure for limited things like something that can be used for a weapon—so contraband doesn't fall into that category; something that can be used to aid an escape—so it doesn't fall into that category—; or for a document that might be used for cancellation of a visa— and it doesn't fall into that category. Does that mean you can't deal with drugs at all? No, but what you're actually doing is dealing with an offence once you know it's been committed. That doesn't actually assist you with the management of the security and safety of the detention centre.

2.19 The department explained that while it maintains good relationships with law enforcement partners, reliance on law enforcement 'continues to put detainees, staff and a range of other people at particular risk in terms of their safety and security'. It stated that the power (or lack thereof) to search for and seize prohibited items directly impacts upon its responsibility to 'maintain the good order and safe and secure operations of…detention facilities'. 35 Ms Pip de Veau, General Counsel for the Department of Home Affairs, outlined the basis for this position:

At the moment, because you can only deal with drugs once an offence has been found to have been committed, because you accidentally come across the contraband and you know it's unlawful to possess it, you would need to call the police and they would arrange for whatever search or seizure powers they have to come and collect that and then deal with it in whatever way they can. The problem is that, by not being able to proactively manage those items in allowing you to search and seize, you can't prevent the crime from being committed. And it would be the same for other illegal things, like finding someone accessing child pornography on the internet or other things. You would have to have evidence that it has actually occurred before you come and mop it up in terms of the search and seizure, as opposed to being able to manage things in a way that prevents those things from happening.36

The role of ministerial discretion 2.20 A significant difference between the Migration Amendment (Prohibiting Items in Immigration Detention Facilities) 2017 Bill (the 2017 bill) and the bill presently being considered pertains to the role of ministerial discretion. Under

the 2017 bill, the legislative instrument by which the minister could declare an item a ‘prohibited thing’ could not be the subject of a disallowance motion in the Senate. Proposed subsection 251A(4) reverses that position in the current bill. Proposed subsection 251B(6) inserts a new head of power for ministerial discretion, to direct authorised officers to exercise their seizure powers with respect to certain things.

35 Mrs Claire Rees, Committee Hansard, 3 July 2020, p. 32.

36 Committee Hansard, 3 July 2020, p. 24.

19

Breadth of ministerial discretion to determine a 'prohibited thing' 2.21 Some submitters raised concerns about the breadth of the ministerial discretion in declaring an item a 'prohibited thing'.37 The Law Council posited that as currently drafted, the 'definition of a "prohibited item" is far too loosely framed

and delegates to the minister the power to determine what falls within its scope'.38 It continued, 'it is parliament's role to determine through primary legislation the precise scope of coercive powers'.39 The Law Council acknowledged that subjecting this discretion to a disallowance motion is 'a positive change', but raised concerns that 'the bill, as drafted, simply allows things to be listed. It's a list simpliciter; it is not for things to be prohibited in certain circumstances'.40 The Law Council suggested an alternative approach in which the definition of a 'prohibited thing' is amended to be 'an exhaustive list of specific items which reasonably present a risk'.41

2.22 The potential for these determinations to become a 'blanket ban', particularly on mobile phones, was raised in a number of submissions.42 It was clearly rejected in the evidence of the department.43

2.23 The AHRC acknowledged that items may have a dual use, in that the same item may be used for both threatening and benevolent purposes, stating:

Where there is clear evidence that items have been used in such a manner, prohibiting their possession on an individualised basis may be a reasonable measure. However, 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.44

37 See, for example, Ms Tessa Maybery, Solicitor and Migration Agent, Refugee Legal, Committee

Hansard, p. 12; Refugee Legal, Submission 24, p. 5; Amnesty International, Submission 1, p. 2; Rural Australians for Refugees Queanbeyan, Submission 4, p. 2; Refugee Council of Australia, Submission 27, p. 3.

38 Ms Pauline Wright, Committee Hansard, 3 July 2020, p. 1.

39 Ms Pauline Wright, Committee Hansard, 3 July 2020, p. 2. See also, Ms Katie Wrigley, Committee

Hansard, 3 July 2020, p. 3.

40 Mr David Prince, Member, Migration Law Committee, Law Council of Australia, Committee

Hansard, 3 July 2020, p 4.

41 Ms Pauline Wright, Committee Hansard, 3 July 2020, p. 2.

42 See, for example, Blue Mountains Refugee Support Group Inc, Submission 18, p. 4; Kaldor Centre

for International Refugee Law, Submission 23, p. 2; AHRC, Submission 26, p. 16; The Humanitarian Group, Submission 46, p. 6; Law Council of Australia, Submission 64, p. 7.

43 Ms de Veau, Committee Hansard, 3 July 2020, p. 27.

44 AHRC, Submission 26, p. 16.

20

2.24 The AHRC recommended that the bill be amended 'to stipulate that items that do not present inherent risks to safety and security may be prohibited in immigration detention' only in the following three circumstances:

 on the basis of rigorous individual risk assessments  where the decision maker forms a view, on reasonable grounds, that the person is likely to use the item in a manner that presents a clear and significant risk to safety or security, and

 where those risks cannot be managed in a less restrictive way.45

2.25 A number of submitters argued that certain categories of people in immigration detention should not be subject to the provisions, such as those who have not been convicted of a criminal offence, or those who are identified as being particularly vulnerable.46 The Centre for Asylum seekers, Refugees and Detainees argued that while the bill is directed at a small cohort of detainees, it 'has the potential to have a seriously detrimental effect on all detainees including many vulnerable asylum seekers and refugees'.47

2.26 On the exercise of discretion, the Commonwealth Ombudsman, Mr Michael Manthorpe PSM stated that he envisaged that this bill may generate complaints to him, and it may generate a desire from his office to observe how the framework operates in practice.48 He observed:

I've seen from some of the submissions a concern that what could occur is some sort of blanket ban on phones. If that were to occur, that would generate a considerable number of complaints and quite a focus for my office, but, if a more targeted approach were taken and built into the framework, then some of those concerns might be alleviated. Nevertheless, I would want to look at all of that.49

2.27 Mr Andrew Kefford PSM of the Department of Home Affairs asserted that 'the bill seeks to strike a balance between the individual rights of detainees and the protection of the community, facility staff, visitors and other detainees'.50 He continued:

The bill does not propose a blanket ban on mobile phones in detention facilities. It does, by disallowable instrument, allow the minister to direct officers to seize mobile phones from certain categories of people in certain circumstances. These circumstances include where the phone is being used

45 AHRC, Submission 26, p. 19.

46 See, for example, Bayside Advocacy and Support Association, Submission 3, p. 1; Ms Sasha

Pearson, Submission 11, p. 1; Grandmothers for Refugees, Submission 60, p. 3; Cairns for Refugees, Submission 66, p. 1.

47 Centre for Asylum Seekers, Refugees and Detainees (CARAD), Submission 12, p. 3.

48 Committee Hansard, pp. 17-18.

49 Committee Hansard, pp. 17-18.

50 Mr Andrew Kefford PSM, Committee Hansard, 3 July 2020, p. 23.

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to conduct activities that would be illegal in the community—for example, accessing child abuse material. Detainees who do not use their mobile phones for criminal activities or activities that endanger the health, safety and security of staff, other detainees or the facility itself would be able to retain their mobile phones.51

2.28 The department informed the committee that the purpose of providing the minister with discretion to determine a 'prohibited thing', as opposed to outlining an exhaustive list of items in primary legislation, is to allow the department to identify items for which it is then able to exercise its search and seizure powers. Listing items in legislation, the department asserted, reduces the 'flexibility to deal with circumstances as they arise and threats that emerge'.52 The mechanism proposed in the bill allows for flexibility while also providing an oversight mechanism (via disallowance). 53 Ms de Veau posited that:

just because a thing is listed doesn't mean that it is automatically unlawful to hold onto that or have it; it provides the ability, in certain circumstances, when that discretion is exercised to be able to search for it and seize it.54

2.29 Ms de Veau provided the example of someone who might be subject to the provisions, should the minister choose to list mobile phones as a prohibited thing. She stated:

There was a person who was in the Villawood Immigration Detention Centre and had been caught conducting, using a mobile phone, a fraudulent scam in relation to credit cards. In the bail application, there were two things that were observed: firstly, that he had a history of this type of offending behaviour and, secondly, as I think the judge said, that all he had to do to continue that offending behaviour was to have access to a phone.55

2.30 The department was questioned as to how it could guarantee that a blanket ban would not occur if the legislation was passed. Ms de Veau responded:

Having a legislative framework, how you use it is perhaps the point of distinction. What is envisaged and intended by the provisions is that, if a thing is a prohibited thing, they then enable a person to search for and seize it as a matter of discretion...If we take, more broadly, how you exercise that discretion and the considerations you have in relation to that, it would be a matter of robust procedural instructions, which would be made public. They would obviously also be part of the consideration the Ombudsman has as part of his responsibilities in relation to detention

51 Mr Andrew Kefford PSM, Committee Hansard, 3 July 2020, p. 23.

52 Ms Pip de Veau, Committee Hansard, 3 July 2020, p. 29.

53 Ms Pip de Veau, Committee Hansard, 3 July 2020, p. 29.

54 Committee Hansard, 3 July 2020, p. 24.

55 Committee Hansard, 3 July 2020, p. 25.

22

centres and how those are applied. It's about how you then exercise the discretion to search for and seize things that are on the list.56

Ministerial direction to exercise seizure powers 2.31 The bill proposes a second ministerial discretion, that being to direct authorised officers to exercise their seizure powers with regard to certain items. This discretion would not be subject to disallowance.

2.32 The Law Council argued against the implementation of this measure, stating:

this should not be left to the executive, nor should it be able to mandate, through a non-disallowable legislative instrument, the blanket exercise of seizure powers. Such powers should be framed tightly and exercised sparingly based on the careful and reasonable use of discretion and the relevant circumstances.57

2.33 The Law Council expressed concern that under this provision, the minister 'is being granted an unjustifiably broad discretion to make blanket decisions affecting the lives of persons in immigration detention, without sufficient oversight'. It continued, stating 'that the provisions as they are currently drafted may operate to enforce prohibitions differently for different cohorts on an arbitrary or even discriminatory basis'.58

2.34 The explanatory memorandum states that the purpose of this power is to:

allow the Department to implement, for example, a targeted, intelligence-led, risk-based approach in relation to the seizure of mobile phones, SIM cards and other prohibited things from detainees in facilities specified in a binding Ministerial direction, based on risk assessments and operational security.59

Mobile phones in immigration detention facilities 2.35 A significant number of submitters raised concerns about the impact the prohibition of mobile phones might have on detainees should that item be declared a 'prohibited thing'. Submitters noted that mobile phones assist

detainees in maintaining access to legal services, communication with friends and family, for education, for entertainment purposes and to promote transparency.60

56 Ms Pip de Veau, Committee Hansard, 3 July 2020, p. 27.

57 Ms Pauline Wright, Committee Hansard, 3 July 2020, p. 2.

58 Law Council of Australia, Submission 64, p. 26.

59 Explanatory memorandum to the Migration Amendment (Prohibiting Items in Immigration

Detention Facilities) Bill 2020 (explanatory memorandum), p. 13.

60 See, for example, Ms Sahar Okhovat, Committee Hansard, p. 12; Federation of Ethnic Communities'

Councils of Australia (FECCA), Submission 17, p. 1; Blue Mountains Refugee Support Group Inc, Submission 18, pp. 3-4; Brigidine Asylum Seekers Project, Submission 19, p. 4; Hunter Asylum Seeker Advocacy, Submission 20, p. 1; Combined Refugee Action Group, Submission 21, p. 1; Kaldor

23

2.36 Several submitters raised concerns that the deprivation of access to a mobile phone may amount to an infringement of a number of human rights.61 Maurice Blackburn submitted that the bill may infringe:

the right to privacy, the right to freedom of expression and the right for an individual to not have unlawful interference with their family or correspondence.62

2.37 Serco suggested that it may be the rights of its staff that are currently being infringed upon when it submitted that the privacy of its staff was being violated by the misuse of mobile phones within immigration detention facilities to intimidate staff.63

2.38 The AHRC noted the importance of mobile phones in maintaining connections to family and loved ones, particularly in relation to detainees with children, and noted the difficulty in doing so using a landline in a communal area of an immigration detention facility.64

2.39 The Australian Medical Association (AMA) stated that as a result of the removal of mobile phones, detainees 'will encounter difficulties in maintaining crucial contact with those who support their mental health and wellbeing'.65 It suggested that mobile phones provide detainees with access to applications, information and contacts that assist detainees' mental health and wellbeing.66 The AMA's concern about the impact on detainees' mental health was shared by others, including the Royal Australian College of General Practitioners,67 the Australian Association of Social Workers68 and Human Rights Watch.69 Doctors for Refugees referred to the current conditions in immigration detention facilities, where visitors have been prevented from attending

Centre for International Refugee Law, Submission 23, p. 2; Refugee Council of Australia, Submission 27, pp. 4-6; National Council of Churches in Australia, Submission 30, p. 2; Rural Australians for Refugees, Submission 36, p. 2; Immigration Advice and Rights Centre (IARC), Submission 55, p. 3.

61 See, for example, Legal Aid NSW, Submission 45, pp. 4, 8; The Humanitarian Group, Submission 46,

p. 7; IARC, Submission 55, p. 3; Law Council of Australia, Submission 64, pp. 9, 22.

62 Maurice Blackburn, Submission 51, p. 2.

63 Serco, Submission 22, p. 3.

64 Mr Edward Santow, Committee Hansard, p. 20. See also, Ms Tessa Maybery, Committee Hansard,

p. 12; Brigidine Asylum Seekers Project, Submission 19, p. 3; Refugee Council of Australia, Submission 27, p. 6-7; Rural Australians for Refugees, Submission 36, p. 2; NSW Council for Civil Liberties, Submission 38, p. 7.

65 Australian Medical Association (AMA), Submission 5, p. 1.

66 AMA, Submission 5, pp. 1-2.

67 Royal Australian College of General Practitioners, Submission 58, p. 4.

68 Australian Association of Social Workers, Submission 38, p. 5.

69 Human Rights Watch, Submission 57, pp. 3-4.

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immigration detention facilities to limit the spread of COVID-19 and raised concerns about the mental health ramifications of removing mobile phones from detainees 'who can no longer rely on social supports in physical proximity to them'.70

2.40 The Commonwealth Ombudsman explained the complexities that might arise in making complaints if a detainee did not have access to a mobile phone. Mr Manthorpe stated that he 'accepts in good faith, the assurances from the department that in all of the facilities, there are landlines and internet and so on available'.71 However, he noted that mobile phones have an advantage in facilitating privacy in these conversations.72 Other submitters noted the broader transparency benefits of detainees' access to mobile phones.73

2.41 Issues around privacy and practicality were also raised concerning access to legal representation.74 Refugee Legal stated that it has 'directly experienced the impossibility and impracticality of contact with detainees using only the facilities provided in the detention centres'. Refugee Legal continued, that in its, 'access to a mobile phone can be the difference between a detainee successfully seeking asylum in Australia and a detainee being deported without realising that right'.75 The Law Council echoed this position, noting that mobile phones assist in meeting strict procedural time limitations. 76

2.42 Ms Katie Wrigley from Legal Aid NSW informed the committee that:

Many of my clients decline pre-booked appointments, asking if our lawyers can call them instead on their mobile phones. They report not feeling comfortable discussing confidential aspects of their case with other people around, including Serco staff. Then there are practical problems associated with the phones that are used there, where our clients have been transferred without notice to a different detention centre after the time of our booking. There is no centralised system, like there is with our clients who are in court ordered detention, whereby a solicitor can look up where a person in immigration detention is located.77

70 Doctors for Refugees, Submission 14, p. 2.

71 Committee Hansard, p. 20.

72 Committee Hansard, p. 20.

73 See, for example, Kaldor Centre for International Refugee Law, Submission 23, p. 7.

74 See, for example, Amnesty International, Submission 1, p. 1; Australian Lawyers Alliance,

Submission 10, p. 5.; NSW Council for Civil Liberties, Submission 38, p. 6; Maurice Blackburn Lawyers, Submission 51, p. 2; Stewart Administrative & Migration Lawyers, Submission 52, p. 2.

75 Ms Tessa Maybery, Committee Hansard, p. 12.

76 Ms Pauline Wright, Committee Hansard, 3 July 2020, pp. 2, 5.

77 Committee Hansard, p. 2.

25

2.43 Legal Aid NSW also highlighted the benefit of mobile phones in the use of interpreters, stating:

the telephone interpreter service works very quickly and easily where a client has a mobile telephone, whereas calling the telephone interpreter service through a switchboard is logistically difficult and time consuming and inhibits important communication between a client and their representative.78

2.44 Other submitters raised broader concerns about access to fixed phones in immigration detention facilities. 79 Amnesty International submitted that in its experience of visiting immigration detention centres over the past 20 years, it has 'found the availability of fixed phones and computers to be woefully inadequate'.80 It also noted that the variability in the cost for international calls may allow some detainees to have longer phone calls than others.81

2.45 Particular concerns relating to the current COVID-19 pandemic were raised by the Kaldor Centre for International Refugee Law, which stated that the requirement to use fixed facilities may:

exacerbate the already high risk posed by detention in the context of the COVID-19 pandemic, by requiring detainees to use shared phone and computer facilities for essential communications.82

2.46 In response to these concerns, the department highlighted that the legislation would not automatically result in mobile phones being listed as a prohibited thing. It stated, however, that should mobile phones be listed, it would not automatically follow that 'everyone, particularly those who seek asylum, would necessarily not have access to their mobile phone'. Having specific regard to concerns about access to legal representation, the department stated that it is 'very conscious' of its obligations under section 256 of the Migration Act to enable detainees to obtain legal advice.83 Ms de Veau explained:

I would highlight that section 256 has been in the Migration Act, is adhered to, is a positive obligation that is already on the books and continues to be on the books, and it must be applied even if a mobile phone or a communication device were at issue in a particular instance. It says that, if a person is in immigration detention, then those responsible for that detention—which is us—must, at the request of the person, give them the ability to apply for a visa, with forms and the like, and all

78 Ms Katie Wrigley, Committee Hansard, 3 July 2020, p. 6.

79 See, for example, Bayside Advocacy and Support Association, Submission 3, p. 2.

80 Amnesty International, Submission 1, p. 1.

81 Amnesty International, Submission 1, p. 1.

82 Kaldor Centre for International Refugee Law, Submission 23, p. 2.

83 Committee Hansard, 3 July 2020, p. 30.

26

reasonable facilities for obtaining legal advice and taking legal proceedings be afforded him or her.84

2.47 In terms of how that obligation might translate into practice, Ms de Veau continued:

If you get to the situation where [mobile phones are] on the list and they are not within the category of those who can continue to access their phone, there are any number of mechanisms by which they can continue to have access to legal services, including the availability of landlines and the availability of interview rooms and the internet. Of course, the internet would include the ability to do videoconferencing.85

2.48 Mr Kefford echoed these statements in regards to access to communication devices more generally:

Detainees will retain access to various means of communication within detention facilities. Landline phone, internet and facsimile services are widely available, including in private settings, for people to contact and be contacted by family members, legal representatives, migration agents and health professionals.86

Expanded search and seizure powers 2.49 A number of submitters raised concerns about the proposed powers to conduct searches of detainees and immigration detention facilities without a warrant or reasonable suspicion that a detainee may have a prohibited item in

their possession. 87 The Law Council stated that these powers, 'unlike comparable police powers, lack safeguards such as the requirement for a warrant, and this underlines their already extraordinary nature'.88 It recommended that, should the bill be passed, 'any power to search a detainee’s room or personal effects should be limited to situations where there is a reasonable suspicion that a weapon, escape aid or unlawful thing'.89

2.50 Similarly, the AHRC stated that it would 'oppose any provision that would allow an officer to search a detainee's property, unless the officer reasonably suspects that the detainee is in possession of a prohibited item'. It recommended that the search powers be amended to require an authorised

84 Committee Hansard, 3 July 2020, p. 28.

85 Committee Hansard, 3 July 2020, p. 30.

86 Committee Hansard, 3 July 2020, p. 23.

87 See, for example, Mr Alain Rondot, Submission 13, p. 3; FECCA, Submission 17, p. 2; Combined

Refugee Action Group, Submission 21, p. 2; Public Interest Advocacy Centre, Submission 29, p. 6.

88 Ms Pauline Wright, Committee Hansard, 3 July 2020, p. 1.

89 Law Council of Australia, Submission 64, p. 29.

27

officer to have a reasonable suspicion that a prohibited item is within a detainee's possession before conducting a search.90

2.51 The Immigration Advice and Rights Centre (IARC) questioned the use of dogs in searches of immigration detention facilities. In IARC's view, 'the use of dogs for searches is ineffective and can be intimidating and culturally insensitive for some detainees'.91 It pointed to a review of the Police Powers (Drug Detection Dogs) Act 2001 (NSW) by the NSW Ombudsman which raised concerns about the accuracy and, consequently, the legitimacy of using detection dogs. In the IARC's opinion, 'the same concerns exist for using dogs in detention centre facilities'. 92

2.52 The Law Council shared this view, arguing that the provisions do not appropriately address potential cultural sensitivities, or the risk that dogs may be used to harass or intimidate detainees. The Law Council argued that the use of dogs 'should be restricted to rare and exceptional circumstances, such as where there is a reasonable suspicion of narcotics, a bomb threat etc'.93

2.53 Particular concerns were also raised with respect to the impact of strip searches.94 For instance, Legal Aid NSW gave evidence that '[t]he impact of allowing the strip searches…will be particularly traumatic to those who have been subject to torture from the authorities in their home countries'.95

2.54 The AHRC stated that the expansion of strip search powers engages articles 7 and 10 of the International Covenant on Civil and Political Rights (ICCPR) and other United Nations instruments, including the United Nations Standard Minimum Rules for the Treatment of Prisoners (Mandela Rules) and the Body of Principles for the Protection of all Persons under Any Form of Detention (Body of Principles).96 It recommended that the bill be amended to 'only extend search powers to prohibited things that are unlawful and that the Bill explicitly state that strip searches only be conducted as a measure of last resort'.97 Alternatively, the AHRC recommended:

90 AHRC, Submission 27, p. 20.

91 IARC, Submission 55, p. 5.

92 IARC, Submission 55, p. 5.

93 Law Council of Australia, Submission 64, p. 29.

94 See also, FECCA, Submission 17, p. 2; Doctors for Refugees, Submission 14, p. 2; Combined Refugee

Action Group, Submission 21, p. 2; Refugee Legal, Submission 24, p. 11; Refugee Council of Australia, Submission 27, p. 8; Liberty Victoria, Submission 33, p. 4; and United Nations Commissioner for Refugees, Submission 40, p. 9.

95 Ms Katie Wrigley, Committee Hansard, 3 July 2020, p. 2.

96 AHRC, Submission 26, p. 26.

97 AHRC, Submission 26, p. 29.

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if the strip search provisions are introduced, the Commission recommends that Bill be amended to provide that:

 The Department must maintain a log of the conduct of strip searches including details about the compliance with each of the requirements of ss 252A and 252B of the Migration Act.  The Department must notify the Commonwealth Ombudsman when it

receives a complaint about the conduct of a strip search.  The Commonwealth Ombudsman must conduct an annual review and prepare a report about the comprehensiveness and adequacy of the

Department’s internal processes relating to strip searches to be tabled in Parliament.98

2.55 The department told the committee that 'operational policy will provide guidance on when it is appropriate for detainees to be searched', and indicated five circumstances in which the use of search and screening powers will be primarily focussed:

 a detainee is moving in and out of a facility or visitor’s area,  a detainee is moving between secure sections of an IDF,  during movements outside of an [immigration detention facility],  in response to a detainee’s behaviour, an occurrence or incident, or  a targeted, intelligence led operation is being undertaken to locate

prohibited things.99

2.56 The department advised the committee that the bill does not seek to amend any of the existing provisions with respect to strip searches except to include the search for a prohibited thing amongst the bases for which one may take place.100 The department confirmed that strip searches are conducted very rarely-'one to two strip searches per year at most'101-and that the current safeguards and circumstances would continue to apply:

Reasonable suspicion that a detainee has a prohibited thing and that a strip search is necessary to recover the thing, and authority from the Secretary, ABF Commissioner or an SES Band 3 officer (or from a magistrate for detainees over 10 but under 18) is still required for a strip search to be conducted. A child less than 10 years must not be strip searched.102

98 AHRC, Submission 26, p. 29.

99 Department of Home Affairs, Submission 69, p. 8.

100 Ms Pip de Veau, Committee Hansard, 3 July 2020, p. 29.

101 Mrs Claire Rees, Committee Hansard, 3 July 2020, p. 29.

102 Department of Home Affairs, Submission 69, p. 8. See also Ms Pip de Veau, Committee Hansard,

3 July 2020, p. 29.

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Constitutional concerns 2.57 The Kaldor Centre for Refugee Law and the Law Council suggested that the bill as currently constructed may be open to constitutional challenge on a number of grounds.

2.58 The Kaldor Centre stated that, in its view, the bill if passed would infringe upon the implied freedom of political communication, and that a challenge to it would have reasonable prospects of success.103 The Law Council stated that that the bill may also be challenged on the grounds that it is punitive in nature and may restrict detainees' 'communication with legal representatives and family members and take away access to information, communication and entertainment on the internet and social media'.104

2.59 The department was asked to respond to each of these concerns. In regards to the first, the department outlined the threefold test for the freedom of political expression. Ms de Veau informed the committee:

The first part is: would the prohibition burden the freedom of political communication? Again, the provisions don't say anything about access to communications means, so that only gets enlivened if something is added to the list that would be otherwise used for political communication.

The second part of the test is: is the legal framework compatible with the maintenance of the systems of government? Another way of paraphrasing that is: is there a legitimate purpose? We would point to the need to ensure safety, security and good order in detention centres as being that legitimate purpose. And the third part is: is the legislation reasonably appropriate and adapted to advancing that purpose?

So, in order to avoid that constitutional issue, we'd be very mindful about ensuring that communication devices, were they to be included, have a strong and evidence based connection to the risk and the harm we're trying to alleviate. There would be some safeguards in place; I've mentioned a number of them, including that it's a disallowable instrument. We would need to make sure that the way any discretion is exercised to deal with those communication lines is, once again, done on a proper evidence based risk assessment that demonstrates that the way, as a matter of fact and degree, that those provisions are being applied doesn't inappropriately trespass on the freedom of political expression.105

2.60 In regards to the second concern, as to whether the measures would constitute punitive action and therefore infringe upon the punitive power of the judiciary under Chapter III of the Constitution, Ms de Veau stated:

We say that these measures do not take it to a place where it becomes punitive in nature. I think it's a question of fact and degree, but we say that it is not punitive in nature and does not make it punitive in nature,

103 Kaldor Centre for International Refugee Law, Submission 23, p. 10.

104 Law Council of Australia, Submission 64, p. 10.

105 Ms Pip de Veau, Committee Hansard, 3 July 2020, pp. 31-32.

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particularly in the way that it's proposed to be limited to search by way of discretion. We say that it also is balanced with the need for security, good order and safety, so it's proportional in that way. We say that it's not punitive in nature and, therefore, does not give rise to a chapter III argument in that regard.106

2.61 In regards to the third ground-the ability of detainees to communicate with legal representatives-the department responded that it is aware of and adheres to the obligations arising under section 256 of the Migration Act, which puts a positive obligation on the department to provide access to legal assistance. Adherence to this section, the department stated, acts as a 'handbrake on the suggested interference with access to legal representatives that might enliven an argument in relation to chapter III interference'.107

Protections and oversight 2.62 A number of submitters raised concerns that the provisions would afford the department and the operators of immigration facilities broad powers without proportionate accountability and oversight. For instance, the Australian

Lawyers Alliance expressed reservations about the 'extraordinary discretionary powers to conduct body searches of people who are being held in immigration detention centres, and to remove personal items including mobile phones and electronic devices'.108 The Blue Mountains Refugee Support Group submitted that 'the discretionary powers given to "authorised officers" is lacking in clarity, is too extensive and open to abuse and lack of accountability'.109

Internal standards and protections 2.63 The department outlined the proposed operational policy should the bill pass. It stated that implementation of the legislation would occur in accordance with the APS Code of Conduct, the Secretary's Professional Standards Direction and

key guiding principles in detention, which include:

 detainees will be treated fairly and reasonably within the law and conditions of detention will ensure the inherent dignity of the human person,  such actions must be conducted for a lawful purpose,  only officers who have completed relevant training and are lawfully

authorised are permitted to exercise search, screening and seizure powers.110

106 Ms Pip de Veau, Committee Hansard, 3 July 2020, p. 24.

107 Ms Pip de Veau, Committee Hansard, 3 July 2020, p. 24.

108 Australian Lawyers Alliance, Submission 10, p. 5.

109 Blue Mountains Refugee Support Group Inc, Submission 18, p. 3.

110 Department of Home Affairs, Submission 69, p. 6.

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2.64 The department noted that operational policy instructions would be developed to guide officers in implementing the powers which will be made public on the department's website.111 It also noted that the existing avenues for complaint would continue to be available under the new framework, including to external agencies such as the Australian Human Rights Commission, the Commonwealth Ombudsman and the Australian Red Cross.112

2.65 Further, Serco outlined its responsibilities, noting that:

 Serco employees working in immigration detention are bound by the APS code of conduct and Serco’s own code of conduct.  Serco is required to handle records and documents in accordance with the Archives Act 1983 (Cth) as though Serco was a Commonwealth

body. All records produced by Serco pursuant to the deliver [sic] of services under its contract(s) with the Commonwealth become, upon their creation, and continue to be in perpetuity, Commonwealth records.  The contract(s) between Serco and the Commonwealth contain

significant performance management mechanisms for any shortfalls in practice or process, ranging from financial abatement to potential loss of contract.  The Commonwealth Ombudsman, Australian Human Rights Commission, United National High Commission for Refugees and other statutory bodies regularly and continuously assess, scrutinise and investigate operations generally and in response to alleged incidents. Serco is required to fully cooperate with those agencies in those matters.113

External scrutiny 2.66 Both the department and Serco noted the function of external bodies, such as the Commonwealth Ombudsman, the AHRC and the Red Cross in receiving and investigating complaints as well as conducting regular assessments of and

reporting on the operations of immigration detention facilities.

2.67 The Commonwealth Ombudsman outlined the way in which it provides oversight of the department's administration of immigration detention as follows:

 Handling complaints, under the Ombudsman Act 1976 (the Ombudsman Act) about the Department's administrative actions and decisions  Conducting proactive inspections, and preparing reports into the operations of immigration detention facilities under the Ombudsman

Act, including in my capacity as the National Preventative Mechanism

111 Department of Home Affairs, Submission 69, p. 6.

112 Department of Home Affairs, Submission 69, p. 9.

113 Serco, Submission 22, p. 4.

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for places of detention under the control of the Commonwealth, under the Optional Protocol to the Convention Against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (OPCAT), and  Preparing assessments of the circumstances of individuals' immigration detention under s 486O of the Migration Act 1958, which are tabled in Parliament.114

2.68 The AHRC has similarly conducted inspections of immigration detention facilities since the mid-1990s. It stated that its work so far has:

included periodic monitoring of detention facilities…and three major national inquiries into immigration detention…to ensure that Australia’s immigration detention system complies with this country’s obligations under international human rights law.115

2.69 The AHRC undertook inspections of all immigration detention facilities on the Australian mainland in 2019, and is due to report later in 2020.116

Committee view 2.70 The committee strongly supports efforts to make immigration detention facilities safe and secure for detainees, staff and visitors alike, and commends the Commonwealth government for seeking to implement a framework that

will uphold its obligations to provide a safe working and living environment for all within immigration detention facilities.

2.71 The committee has considered arguments that the bill may result in a "blanket ban" on certain items and rejects assertions that the bill is a one-size-fits-all approach to restricting particular items from being available in detention. In the committee's opinion, the framework established by the bill would provide the Department of Home Affairs with the flexibility and the authority to ensure the ongoing safety and security of immigration detention facilities, in a way that would not have the effect of 'blanket banning' items.

2.72 The committee agrees that immigration detainees must have access to telecommunication services. However, it also recognises that mobile phones may be used by detainees to organise criminal activities both inside and outside immigration detention facilities, and may also be used to threaten or harass other detainees and staff.

2.73 With regard to detainees' access to telecommunication services, the committee expects the department will continue to ensure reasonable access to telephones, fax machines, the internet, postal services and face-to-face visits in order to ensure that detainees are able to maintain contact with their support networks and their legal representatives.

114 Commonwealth Ombudsman, Submission 68, p. 1.

115 AHRC, Submission 26, p. 3.

116 AHRC, Submission 26, p. 3.

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Recommendation 1

2.74 The committee recommends that the government make administrative arrangements that ensure 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.

Recommendation 2

2.75 The committee recommends that the Senate pass the bill.

Senator Amanda Stoker Chair

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Labor Party Senators' dissenting report

1.1 Labor Senators recognise that the risks associated with the changing profile of detainees in migration detention may require new management policies and practices. However, the bill indicates that the Government has made no real attempt to address problems in a more focussed and effective manner.

1.2 In his Second Reading Speech on 14 May 2020, Hon Alan Tudge MP, Minister for Population, Cities and Urban Infrastructure, claimed:

The current version of the Bill includes amendments that specifically address feedback from the committees to ensure amendments do not trespass on personal rights and liberties of detainees.1

1.3 The written submission from the Department of Home Affairs argues similarly, that the current bill has addressed '…concerns raised about the 2017 version.'2

1.4 However, Labor Senators are not convinced that theirs and stakeholders’ major concerns have been resolved or addressed adequately. Many submissions and witnesses hold the same concerns:

We are dismayed that this bill is being presented again, three years after it was introduced, with no real change to the content of the bill.3

1.5 Importantly, the current bill still applies all measures to all residents in detention facilities, rather than differentiating between different types of detainees. Labor Senators ask why the bill’s provisions cover all detainees, rather than be targeted at the high-risk detainees.

Background 1.6 The Explanatory Memorandum describes the purpose of the bill as:

…to strengthen the Department of Home Affairs’ ability to regulate the possession of particular items in immigration detention facilities in order to ensure that the Department can provide a safe and secure environment for staff, detainees and visitors in an immigration detention facility. 4

1 The Hon. Alan Tudge MP, Minister for Population, Cities and Urban Infrastructure, House of

Representatives Hansard, 14 May 2020, p. 3443.

2 Department of Home Affairs, Submission 69, p. 10.

3 Ms Sahar Okhovat, Senior Policy Officer, Refugee Council of Australia, Committee Hansard,

3 July 2020, p. 11.

4 Explanatory Memorandum to the Migration Amendment (Prohibiting Items in Immigration

Detention Facilities) Bill 2020 [Provisions] (explanatory memorandum), p. 2.

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1.7 At the committee's hearing on 3 July 2020, the department stated:

the bill would allow the minister to determine prohibited things and strengthen the power of authorised officers to search for and seize those prohibited things from detainees held in immigration detention.5

How will this be done? 1.8 There are several aspects of the bill that relate to implementation of the bill’s purpose. Of particular note, is the Minister for Home Affairs' ability to define a ‘prohibited thing’ as:

(a) Both:

(i) possession of the thing is unlawful because of a law of the Commonwealth, or a law of the State or Territory in which the person is detained, or in which the facility is located; and (ii) the thing is determined by the Minister by legislative instrument

under paragraph 251A(2)(a); or

(b) the thing is determined by the Minister by legislative instrument under paragraph 251A(2)(b).6

1.9 In Minister Tudge’s own words:

The bill amends the Migration Act to enable the minister, by disallowable legislative instrument, to determine things to be prohibited things… The bill will also give the minister the power to issue binding written directions to officers that require them to exercise their seizure powers in relation to weapons, escape aids or prohibited things.7

1.10 Labor Senators have a range of concerns about this bill.

The status of people in immigration detention 1.11 In considering how to manage people in migration detention centres the Australian Government must bear in mind that people in these centres are subject of an administrative action, not a criminal measure. Labor Senators

note that the UNHCR Convention, to which Australia is a party, seeks the “…non-penalisation of refugees.”

1.12 In appearing before the Committee, the Law Council of Australia observed:

It must be remembered that people in immigration detention are not prisoners, and their rights should not be curtailed as though they were.8

5 Mr Andrew Kefford PSM, Acting Deputy Secretary, Immigration and Settlement Services,

Department of Home Affairs, Committee Hansard, p. 23.

6 Explanatory memorandum, pp. 6-7.

7 The Hon Alan Tudge MP Minister for Population, Cities and Urban Infrastructure. 2nd Reading

Speech. House of Representatives, 14 May 2020. p3443.

8 Ms Pauline Wright, President, Law Council of Australia, Committee Hansard, 3 July 2020, p. 1.

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1.13 This line of argument was reiterated by several submissions and witnesses, including the United Nations High Commissioner for Refugees who wrote:

…detention arrangements should not be punitive nor should facilities accommodating asylum-seekers and refugees operate like prisons or jails.9

1.14 Legal Aid NSW argued that:

…immigration detention is administrative detention that must be distinguished from court ordered detention. Measures which are appropriate in the context of court ordered detentions are not appropriate in the context of administrative detention.10

Is this legislation needed to handle the situations described by the Government? 1.15 Labor Senators consider that the Government should have been able to produce stronger evidence to support their claims that detention centres are

becoming more dangerous.

1.16 Labor Senators recognise that the ‘types’ of detainees have changed over recent years, thus a different approach is likely required. The Labor Party supports prohibiting items that are already illegal under state, territory, or Commonwealth law, particularly narcotic drugs, child exploitation material or weapons as these items present a demonstrable risk within the detainee population and to detention centre staff.

1.17 However, the Government has failed to make a case for why this situation cannot be handled on a case by case basis or through existing legislation.

1.18 Like several submissions and witnesses, the Refugee Council of Australia argues:

We believe there is no need for this Bill, as the current powers, laws and policies can and do deal with the issues that the Government seeks to address via the Bill.11

1.19 The Kaldor Centre for International Refugee Law made a similar argument:

It is important to remember that ordinary criminal laws apply to those in detention.12

1.20 The department argued it does not have adequate statutory powers to undertake the actions required, but it makes limited mention of common law

9 United Nations High Commissioner for Refugees (UNHCR) (quoting UNHCR ‘Guidelines on the

applicable criteria and standards relating to the detention of asylum-seekers and alternatives to detention’ (2012)), Submission 40, p. 1.

10 Ms Katie Wrigley, Senior Solicitor, Legal Aid NSW, Committee Hansard, 3 July 2020, p. 2.

11 Refugee Council of Australia, Submission 47, p. 1.

12 Kaldor Centre for International Refugee Law, Submission 23, p. 5.

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powers it has to remove items that pose a danger to health and safety in detention.

1.21 The Serco ‘Pat Searching’ manual released by the department in 201713 includes specific instructions for staff on how to search for drugs including:

Items such as drugs, child pornography and alcohol fall under common law duty of care, by which the department must ensure the safety and well-being of detainees and others in the IDF.

1.22 The department told the committee that:

Currently in relation to common areas in other parts of the detention centre, any search and seizure powers are really based on our common law responsibilities as the occupier and owner and our duty of care.14

1.23 The department did not elaborate on whether or how these common law powers are insufficient.

1.24 If expert legal witnesses are correct in arguing that existing laws are adequate to deal with the types of situations described by the Government, the bill is a strong indication of the failure of the Government, the minister, and the Department of Home Affairs to manage complex issues in the detention centres.

Is the sweeping nature of this Bill required or should measures be more targeted to certain categories of detainees? 1.25 Labor Senators note the concerns expressed across the range of submissions and witnesses that the current Bill is a disproportionate response to the

situation described by the Government:

This is an extremely broad power, exercisable once a very low and poorly defined risk threshold risk is met.15

1.26 The measures in the bill appear to be disproportionate to the stated risks. In particular, the bill enables blanket prohibitions on all detainees regardless of their needs, vulnerabilities, or risk profile.

1.27 Labor Senators are concerned that the Bill applies to all detainees in migration detention centres, without differentiation.

13 Department of Immigration and Border Protection, answer to written question on notice (received

10 November 2017) from the Senate Legal and Constitutional Affairs Committee's inquiry into the Migration Amendment (Prohibiting Items in Immigration Detention Facilities) Bill 2017 [Provisions].

14 Ms Pip de Veau, Group Manager and General Counsel, Legal Group, Department of Home

Affairs, Committee Hansard, p. 24.

15 Kaldor Centre for International Refugee Law, Submission 23, p. 3.

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1.28 This is despite evidence from the Government on the change in the composition of detainees. Appearing before the committee, the Department of Home Affairs advised:

An increasing number of high-risk individuals with criminal histories are being accommodated in immigration detention facilities pending their removal from Australia. These include child sex offenders and members of outlaw motorcycle gangs and other organised crime groups who have had visas cancelled or refused on character grounds. Many of these individuals have entered immigration detention directly from a correctional facility at the end of their criminal sentence. The changing nature of the immigration detention population has seen an increase in behaviour of concern in immigration detention facilities across Australia.16

1.29 Labor Senators appreciate and share concerns that there are high risk individuals in immigration detention, just as there are high risk individuals in the wider community.

1.30 In immigration detention, high risk individuals pose a danger to other groups of detainees and staff.

1.31 Labor Senators agree with the points raised by many submitters that the bill fails to differentiate between the very different groups of people in immigration detention and that differentiated arrangements are required.

1.32 Labor Senators’ concerns were supported by the Australian Human Rights Commission:

Under international law, the Australian government must take great care to ensure that any action it takes to achieve that aim is carefully targeted to achieving that aim while upholding the basic rights of people who are detained. Extra care must be taken to immigration detention. Under international law and under the Australian Constitution, immigration detention can never be imposed as punishment.17

1.33 It would be of grave concern to Labor Senators if the opinion of the Immigration Advice and Rights Centre is correct:

It is our view that the proposed ban amounts to collective punishment for the misdeed of a few…18

1.34 Labor Senators recommend that the Government either withdraw the bill, or significantly amend the Bill to address these concerns and ensure that the bill is focussed on the specific risks and does not impose broad sweeping measures that punish detainees who themselves may be at risk from other, high risk detainees.

16 Mr Andrew Kefford, Department of Home Affairs, Committee Hansard, 3 July 2020, p. 23.

17 Mr Edward Santow, Human Rights Commissioner, Australian Human Rights Commission.

Committee Hansard, 3 July 2020. P.16.

18 Immigration Advice and Rights Centre, Submission 55, p. 3.

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1.35 Labor Senators also recommend that, if the Government revises the legislation to be more targeted, it also implements measures which provide extra protections for staff working in immigration facilities, especially those health and medical professionals in immigration facilities.

Mobile phones 1.36 Labor Senators are concerned that the positive benefits of mobile phones to detainees and their welfare are being lost in the generalised accusations of misuse.

1.37 Labor Senators note that the current legal frameworks permit the confiscation of a mobile phone from a detainee if there is a reasonable cause. The Government has not made a convincing case as to why the broad, sweeping powers for confiscation and search and seizure from any detainee in any circumstance, as proposed in the bill, are necessary.

1.38 Labor Senators consider that submissions and witnesses have made convincing arguments both for the benefits of mobile phones to detainees and against the blanket ban on mobile phones for all detainees that this bill would permit.

1.39 Detainees use mobile phones to maintain close contact with friends and family and to maintain effective and timely communication with legal advisers. As the Law Council of Australia observed:

...detainees are working within the administrative law system and the Migration Act, which is subject to very strict deadlines.19

1.40 The Department of Home Affairs argues that if mobile phones are confiscated detainees will have access to other forms of communications, including fixed line phones and fax machines. This response is unsatisfactory. It ignores questions of urgency, 24-hour access to these fixed lines, the relative inadequacy of faxes, and a range of issues relating to the privacy of contacts between lawyers and their clients. It also ignores the fact that detainees are often moved between facilities at short notice.

1.41 The Commonwealth Ombudsman Mr Michael Manthorpe PSM, described the value of mobile phones:

I think the availability of mobile phones for detainees certainly makes it easier for them to approach our office. I accept, in good faith, the assurances from the department that, in all of the facilities, there are landlines and internet and so on available. But they are typically available in common areas where issues of privacy and other considerations apply. I think mobile phones provide an advantage to detainees and an

19 Ms Leah Perkins, Member, Migration Law Committee, Law Council of Australia, Committee

Hansard, 3 July 2020, p. 5.

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opportunity to detainees that they would otherwise not have that may be important if they've got an issue that they want to raise with us.20

1.42 Labor Senators note that mobile phones can also play a vital accountability role in detention facilities. Filming of incidents and behaviours may serve to make the facilities safer for both detainees and staff. The Commonwealth Ombudsman observed:

I think it’s very important - fundamentally important - that people who are detained have access to recourse if they feel they are being mistreated, and there might be instances where mobile phone footage assists them in that regard.21

1.43 Labor Senators note the concerns raised in relation to staff privacy and security, and restate their recommendation that when the Government takes the opportunity to revise this legislation to make it more targeted and focussed on high risk individuals, it also implements additional measures to protect staff working in immigration facilities.

Opportunities for Parliamentary oversight. 1.44 Effective parliamentary oversight is an essential element of democracy. This is especially so with this bill. This bill is an incomplete and unsatisfactory response to concerns raised about earlier versions of this bill, and the concerns

raised by submissions and witnesses about the bill as a whole and about specific elements, notably concerning mobile phones.

1.45 Labor Senators acknowledge some improvement in opportunities for Parliamentary oversight. That change from earlier legislation means that the minister’s declaration of a ‘prohibited thing’ will be via a disallowable instrument. However, that is not enough improvement.

1.46 Some witnesses and submissions argue that ‘prohibited things’ should be defined in legislation, rather than in regulations, as is proposed by the government.

1.47 A further unresolved issue is whether the parliament can disallow a single ‘thing’ on the list of ‘prohibited things’ or whether it must disallow the entire list of ‘prohibited things.’ The committee heard conflicting advice on this issue.

1.48 The Department of Home Affairs advised that single ‘things’ could be disallowed:

Ms de Veau: You can you disallow what is a prohibited item—

Senator KIM CARR: One item?

Ms de Veau: There's provision to make a partial disallowance in the law.

20 Mr Michael Manthorpe PSM, Commonwealth Ombudsman, Committee Hansard, 3 July 2020, p. 20.

21 Mr Michael Manthorpe PSM, Committee Hansard, 3 July 2020 p. 18.

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Senator KIM CARR: I see. That's good. So, your advice is that you could disallow one item off the list?

Ms de Veau: Yes, you can make a partial disallowance.

Senator KIM CARR: Thank you. I'm pleased to hear that.22

1.49 Other parties directly dispute the Department of Home Affairs' evidence.

1.50 The Human Rights Law Centre wrote:

The Senate will only be able to disallow an instrument in full. It could not disallow the designation of a single item listed in an instrument, […] The Minister could group multiple serious items relating to exploitation and illegal activity with more innocuous items like mobile phones in a single instrument.23

1.51 Advice from the Parliamentary Library takes a position between the two opinions quoted above.

1.52 Following a request for client advice from a committee member, the Parliamentary Library advised, inter alia:

The Human Rights Law Centre’s (HRLC) claim that the Senate will only be able to disallow in full an instrument made under proposed section 251A does not appear to be correct. It is possible for an instrument to be partially disallowed, and there are a number of previous examples of this occurring.

However, depending on how an instrument is drafted, Parliament may still face difficulty in voiding an instrument’s application to certain prohibited objects and not others.24

1.53 Further, the Parliamentary Library observed:

[According to] … statements by the Regulations and Ordinances Committee, the disallowance process cannot generally be used to ‘amend’ an instrument. As such, if an instrument was drafted in such a way that ‘innocuous items’ were grouped with ‘serious items’ (to use the language of the HRLC) within a single item or section (and without the use of subsections), then it could be fair to say that Parliament will find it difficult to disallow the designation of a single object as prohibited.25

1.54 Labor Senators’ second concern relating to parliamentary accountability involves the fact that the minister’s written directions on actions involving this bill’s list of ‘prohibited things’ is not a disallowable instrument.

1.55 This was confirmed by the Department of Home Affairs at the committee’s hearing:

22 Ms Pip De Veau, Department of Home Affairs, Committee Hansard, 3 July 2020, p. 23.

23 Human Rights Law Centre, Submission 43, p. 8.

24 Parliamentary Library, Client Advice, 30 June 2020, p. 4.

25 Parliamentary Library, Client Advice, 30 June 2020, p. 4.

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Mr Kefford: …The intention, as is clearly set out in the legislation and the second reading speech, is that the overarching framework is set through a disallowable instrument, which we've just touched on. The second layer of that is a written instruction from the minister to officers in the detention centres about the circumstances in which those searches and seizures, if necessary, could take place. So, it's through those vehicles—supported by, as Ms de Veau has already alluded to, more detailed operational guidance by the department to its officers and to Serco staff as to how that's to be carried out. All of that becomes formally documented, but, ultimately, it's under the supervision of the parliament and the minister's direction.

Senator KIM CARR: They wouldn't be disallowable. Ministerial directions are not disallowable, are they?

Mr Kefford: The drafting of those instructions in the bill—that's not a disallowable instrument; it's one that's notified on the register. But the disallowable instrument is the one establishing the prohibited items.

Senator KIM CARR: I understand that. I just wanted to be clear about it. That's my reading of it as well.

Mr Kefford: Your reading is correct.26

The Government’s inconsistent approach to risky behaviour 1.56 The Government and its representatives have argued that the current bill, and its predecessors, are required to:

…ensure that the Department [of Home Affairs] can provide a safe and secure environment for staff, detainees and visitors to an immigration detention facility.27

1.57 The provisions in this bill are aimed at detainees. Labor Senators ask what is the Government doing to respond to reports and allegations of dangerous behaviour and allegedly illegal behaviour by some detention facility staff?

1.58 Over recent years there have been several allegations of illegal activities or misbehaviour by detention facilities staff. When asked about "…breaches of the Public Service code and breaches of the law by officers acting on behalf of the Commonwealth",28 the Commonwealth Ombudsman advised:

I'm not sure I'd go so far as to say we've seen breaches of the law. We do, at times, see activities around things like use of force, searches of various kinds et cetera that we think go too far. We've highlighted some of that sort of thing in our reports and we'll continue to do so.29

1.59 Responding to a question on notice, the Department of Home Affairs provided the following advice:

26 Committee Hansard, 3 July 2020, p. 28.

27 Explanatory memorandum, p. 22.

28 Senator Hon Kim Carr, Committee Hansard, 3 July 2020, p. 18.

29 Mr Michael Manthorpe PSM, Committee Hansard, 3 July 2020, p. 18.

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“Between 1 January 2019 and 31 March 2020 there were eight investigations into allegations that staff of detention facilities were bringing in contraband including drugs. Of these:

 none related to Department or Australian Border Force staff;  eight related to Serco officers; and  five related to the bringing of illicit drugs or drug paraphernalia into immigration detention centres.30

1.60 In response to queries about a News Corp Australia report on 18 July 2017, alleging contraband smuggling by a Serco officer on Christmas Island, the Department of Home Affairs also confirmed that:

Operation ELEKTRA … an ongoing joint investigation between the Australian Commission for Law Enforcement Integrity (ACLEI) and the Department of Home Affairs … remains ongoing, the Department has not received a final report of investigation from ACLEI in accordance with section 54 of the Law Enforcement Integrity Commissioner Act 2006.31

1.61 The Commonwealth Ombudsman provided further general information about these issues in a written answer to a question on notice from Senator Hon Kim Carr:

The Office of the Commonwealth Ombudsman (the Office) receives complaints about the administrative actions of the Department of Home Affairs (the Department) and service providers contracted to work in immigration detention facilities. The Office also monitors the administration and operation of immigration detention facilities.

Through both processes, the Office is aware of allegations of conduct by department staff and/or Serco officers that could constitute unlawful behaviour. These allegations include:

 General assault  Misuse of mechanical restraints  Excessive use of force  Drug trafficking.

In some instances, we have made suggestions or recommendations to the Department about areas where our investigations have identified improvements could be made, but we have not made any definitive findings of unlawful conduct.32

1.62 Labor Senators consider that this evidence reinforces their argument that the Government needs a balanced and consistent approach to threatening, or allegedly illegal or ‘bad’ behaviour by detention facilities staff, as well as detainees.

30 Department of Home Affairs, answers to questions on notice, 3 July 2020 (received 17 July 2020).

31 Department of Home Affairs, answers to questions on notice, 3 July 2020 (received 17 July 2020).

32 Commonwealth Ombudsman, answers to question on notice, 3 July 2020, (received 20 July 2020).

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1.63 Labor Senators call on the Government to move quickly to establish a more transparent public reporting mechanism for breaches of the law or codes of conduct by Serco staff, as well as other private contractors.

1.64 Secondly, the Government is requested to provide a public answer as to why the ACLEI investigation is still not completed (or, if completed, unpublished) three years after the media report.

Reliable and Consistent Data 1.65 It appears that different data is being used by different organisations involved in the administration of detention arrangements. One excerpt from the 3 July 2020 hearings highlights this problem:

“Mrs Rees: I've got a range of statistics—

Senator KIM CARR: How many people have you got in detention?

Mrs Rees: As at 31 March, there were 1,373 detainees in held detention.

Senator KIM CARR: How many of those were noncitizens with a criminal record?

Mrs Rees: Of those detainees, 862, being 63 per cent, have a criminal history. Of the detainees with a criminal history, 362, or 42 per cent, have a criminal history that includes drug related offences.

Senator KIM CARR: The Human Rights Commission put some statistics to us today, using the same number, 1,373. They say 623 people were subject to visa cancellation under section 501; 512 were asylum seekers who arrived by boat; and 238 were from other categories, including people whose visa was cancelled under other provisions and those who overstayed their visas, and unauthorised air and seaport arrivals and illegal fishers. Would you agree with those statistics?

Mrs Rees: Yes. I've got 623 detained following visa cancellation under 501, and 512 illegal maritime arrivals detained for a number of reasons.

Senator KIM CARR: They are very different from the numbers in the Serco submission—this is a public submission I'm referring to—which asserts that 74 per cent were in a high-risk category. Would that be your statistic?

Mrs Rees: That would be Serco's derived statistic.

Senator KIM CARR: But it's not yours?

Mrs Rees: No.

Ms de Veau: But it might also be a case of apples and oranges.

Mrs Rees: That's right.33

33 Committee Hansard, 3 July 2020, pp. 25-26.

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Guards’ identification 1.66 Labor Senators note that there is dispute between different parties about if and how guards in detention centres should display their identities to the people with whom they are dealing.

APODs - Alternative Places of Detention 1.67 Labor Senators note that the provisions of this bill relate to APODs as well as established detention centres. As at 31 March 2020, APODs accommodated 213 people.

1.68 However, Labor Senators are not convinced about how the search and seizure powers can be conducted properly in APODs which are not Departmental property:

It [an APOD] could be a hotel. It could be a hospital. It could be a nursing home.34

Cost of SERCO services 1.69 It was confirmed by the Department of Home Affairs in written answers to questions on notice, that, between 11 December 2014 and 10 December 2021, the value of the Serco contract is $2.5 billion.

The Government ignores Parliament’s concerns 1.70 Labor Party Senators note that the Senate Standing Committee for the Scrutiny of Bills considered the bill in Scrutiny Digest No. 7/20 which was tabled in June 2020. The committee raised concerns about the limited reasoning offered in

the explanatory memorandum to justify the various expansions of powers suggested under the Act.

1.71 The committee sought further advice from the minister on 11 June 2020 and requested a response by 20 July 2020. The minister still had not responded at the time of tabling on 5 August 2020.

Recommendations 1.72 Labor Senators recommend that the Government either withdraw the bill, or significantly amend the Bill to address these concerns and ensure that the bill is focused on the specific risks and does not impose broad sweeping measures

that punish detainees who themselves may be at risk from other, high risk detainees.

1.73 Labor Party Senators recommend that the bill be amended to define 'prohibited thing' more clearly and that it be defined in legislation to enable appropriate parliamentary oversight.

34 Mrs Claire Rees, Acting Group Manager, Immigration Detention, Australian Border Force,

Committee Hansard, 3 July 2020, p. 26.

47

1.74 Labor Party Senators recommend that the Department of Home Affairs’ instructions to their staff and Serco staff on how to implement the minister’s written directions concerning ‘prohibited things’ be contained in disallowable instruments.

1.75 Labor Party Senators recommend that the bill be amended to ensure that detainees are not prevented from possessing or using electronic devices such as mobile phones unless there is evidence that removal is necessary and proportionate.

1.76 Labor Senators recommend that, if the Government revises the legislation to be more targeted, it also implements measures which provide extra protections for staff working in immigration facilities, especially those health and medical professionals in immigration facilities.

1.77 Labor Party Senators recommend that all parties to migration detention matters agree to use the same published data to avoid confusion in debate and in policy development.

1.78 If the preceding recommendations are not made to the legislation, Labor Party Senators recommend that the bill not be passed.

Senator the Hon Kim Carr Senator Anthony Chisholm

Deputy Chair Labor Senator for Queensland

Labor Senator for Victoria

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Australian Greens dissenting report

1.1 The Australian Greens acknowledge the extensive work of the Committee in this inquiry, and thank everyone who gave evidence at the public hearing, and/or made a public written submission.

1.2 This dissenting report will raise many significant and substantive concerns with the bill before this inquiry, the Migration Amendment (Prohibiting Items in Immigration Detention Facilities) Bill 2020 (the Bill).

1.3 A similar bill, the Migration Amendment (Prohibiting Items in Immigration Detention Facilities) Bill 2017 (the 2017 Bill) was introduced on 13 September 2017. This committee inquired into the 2017 Bill, with its report - including a dissenting report from the Australian Greens recommending the 2017 Bill be opposed by the Senate - tabled on 13 October 2017. The 2017 Bill lapsed at the end of the previous parliament.

1.4 As noted by the Asylum Seeker Resource Centre (ASRC) in their submission to this inquiry, the Bill is largely:

the Government’s ‘work around’ of the Full Federal Court decision in ARJ17 v Minister for Immigration and Border Protection in 2018, which found that existing statutory powers [under the Migration Act 1958] did not give the Secretary power to impose a policy to confiscate detainees’ phones, and that even if it did, the exercise of such powers must be ‘proportionate’ to the risk and take into account ‘considerations peculiar to individual detention centres and considerations personal to individual detainees'.1

1.5 In their joint submission to this inquiry, the Department of Home Affairs (the Department) and the Australian Border Force declared the Bill will:

clarify the intended operation of the search and seizure provisions, following the Full Federal Court decision in ARJ17 v Minister for Immigration and Border Protection [2018] FCAFC 98.2

Immigration detention centres 1.6 As noted by numerous witnesses and/or submitters to this inquiry, people being held in Australia’s immigration detention facilities, including alternative places of detention (APODs), are being detained for administrative, not

punitive purposes. This means, as submitted by the Law Council of Australia (Law Council), that a person’s detention 'is not triggered by criminal offending or suspicion'.3

1 Asylum Seeker Resource Centre (ASRC), Submission 135, p. 12.

2 Department of Home Affairs, Submission 69, p. 3.

3 Law Council of Australia, Submission 64, p. 10.

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1.7 Many detainees in Australia’s immigration detention system are people who have, as submitted by Refugee Legal, 'been transferred there only after completing their term of imprisonment, of the duration determined to be appropriate by the criminal justice system'.4

1.8 However, as submitted by the Refugee Council:

the increased security and the enforcement-centred approach of the Australian Border Force (ABF) to the management of immigration detention facilities have resulted in a highly securitised detention system.5

1.9 As submitted by the ASRC, this has led to immigration detention facilities having:

all, if not more, of the security characteristics and restrictions placed upon detainees and visitors found in regular prisons, but without the same level of accountability … [with] Alternative Places of Immigration Detention (APODs) [being] subject to even less accountability and control.6

Detainees 1.10 According to the Department’s most recent immigration detention statistics (May 2020), there were 1,458 people in immigration detention facilities, under the following categories:

 675 s 501 visa cancellations;  505 asylum seekers and refugees who arrived by boat; and  278 categorised as ‘other’ (visa overstays, non-immigration cleared seaport and air arrivals, and other visa cancellations).

1.11 People being detained in immigration detention centres are not being, and should not be, held for punitive purposes. Many people in detention have never been charged or convicted of a criminal activity. This is why, as submitted by the United Nations High Commissioner for Refugees (UNHCR):

Detention should only apply when it pursues a legitimate purpose (such as to carry out initial identity and security checks in cases where identity is undetermined or in dispute, or there are indications of security risks) and when it has been determined to be both necessary and proportionate in each individual case.7

1.12 People who arrived by boat to seek asylum in Australia account for just over a third of all people held in immigration detention.

4 Refugee Legal, Submission 24, p. 4.

5 Refugee Council of Australia, Submission 27, p. 2.

6 ASRC, Submission 135, p. 4.

7 United Nations High Commissioner for Refugees (UNHCR), Submission 40, p. 1.

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1.13 The UNHCR noted in its submission that:

Detention for the sole reason that the person is seeking asylum is not lawful under international law. Illegal entry or stay of asylum-seekers does not give the State an automatic power to detain or to otherwise restrict freedom of movement.8

1.14 This inconsistency with international law is one of the reasons the Australian Greens have long opposed Australia’s legislative and policy framework that allows for arbitrary and indefinite detention of people seeking asylum, stateless persons, and refugees.

1.15 As submitted by the Human Rights Law Centre (HRLC):

Immigration detention is for the administrative purpose of holding a person temporarily until they are granted a visa or depart Australia. It cannot be punitive in nature … there is no reason for detention centre operators and private contractors to assume the role of law enforcement.9

People detained under section 501 1.16 As submitted by the Australian Human Rights Commission (the Commission):

A key rationale for the measures proposed in the Bill is that people whose visas have been cancelled under s 501 of the Migration Act are, as a group, likely to pose a significant risk to facility security and the safety of others.10

1.17 Since the enactment of the Migration Amendment (Character and General Visa Cancellation) Act 2014 which, as submitted by the ASRC, 'dramatically lowered the threshold for visa cancellation on character grounds and removed key legal protections from the process',11 immigration detention facilities are increasingly being used to detain people who have had visas refused or cancelled under s 501 of the Migration Act 1958 (Migration Act). This cohort of people currently accounts for around 46 per cent of all people held in immigration detention centres.

1.18 Although the Commission noted the changing composition of people in immigration detention, specifically the increase of people detained under s 501, has created cultural and operational challenges in immigration detention facilities, it also submitted:

The grounds on which a person’s visa can be cancelled under s 501 are very broad and include circumstances where the person has not been convicted or even accused of criminal activity.12

8 UNHCR, Submission 40, p. 6.

9 Human Rights Law Centre (HRLC), Submission 43, p. 4.

10 Australian Human Rights Commission (AHRC), Submission 26, p. 13.

11 ASRC, Submission 135, p. 12.

12 AHRC, Submission 26, p. 15.

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1.19 In its submission, the ASRC said it has:

clients whose protection visas were cancelled under s 501 just on the basis of criminal charges, which were subsequently dropped or where our client was later acquitted of the offence. Others have been convicted of offences but never served a day in prison because they received non-custodial sentences for less serious crimes and were considered no or low risk to the community.13

1.20 It’s also worth noting, as the Commission has in various submissions to inquiries and a 2013 background paper, that the 46 per cent of people in detention under s 501:

are often long-term permanent residents who moved to Australia as a child and have lived here for many years prior to their visa cancellation.

Risk assessments 1.21 Risk assessments are conducted on all people being held in Australia’s immigration detention system. The two largest cohorts are people who have had their visas cancelled under s 501, and people seeking asylum who arrived

by boat.

1.22 A persistent argument for the Bill is that people who have had their visas cancelled under s 501 of the Migration Act pose an increased and significant risk to the immigration detention system.

1.23 However, as discussed above, anyone that has been detained under s 501 for criminal convictions will have completed their court-imposed sentence - if they had one - and are now in immigration detention because they no longer hold a valid visa.

1.24 Regarding asylum seekers and refugees who arrived by boat, which is the second largest cohort in immigration detention, the ASRC submitted:

Every person in this group of transferees was pre-screened for character or security issues before they were allowed to enter Australia.14

1.25 According to a 2019 report by the Commission on risk management in immigration detention:

many people in immigration detention may have received risk assessments that do not accurately reflect any objective risk they may pose. In particular, there appears to be considerable variation in the severity of the risk presented by people in the ‘high risk’ category.15

13 ASRC, Submission 135, p. 12.

14 ASRC, Submission 135, p. 4.

15 AHRC, Risk management in immigration detention, 2019, p. 22.

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1.26 As summarised by the HRLC in a written response to Department and Serco evidence provided to the committee for this inquiry, the 2019 Commission report also found that:

Serco’s risk assessment algorithm was flawed - it did not take into account all relevant information, and was disproportionately influenced by prior offending (including non-violent offending) and minor infractions like swearing. Positive behaviour in detention did not lead to a downgrading of risk level, meaning people were stuck with ‘high risk’ ratings despite ongoing good behaviour … [meaning] many people may have risk ratings that do not accurately reflect their objective level of risk.16

1.27 The Commission also noted in its submission that is has raised numerous concerns regarding the way individual risk assessments are currently carried out by the Department, and provided detailed recommendations on how to improve the process.17

Existing powers 1.28 Many expert submitters and witnesses to this inquiry have argued new powers provided by the Bill are unnecessary, and unwarranted.

1.29 Between Serco, the Department, and police, there are existing and wide-ranging powers to deal with all illegal activities the Bill purports to address. These powers exist under Commonwealth, state, and territory legislation, including immigration, privacy, and criminal acts - many of which are referenced in Serco’s Policy and Procedure Manual and the Department’s Detention Services Manual.

1.30 As submitted by the Law Council, the Migration Act:

already permits authorised officers, without a warrant, to search, screen and strip search detainees, in order to find out if there is hidden on the person, or in their clothing or possessions, a weapon or escape aid (including a thing capable of being used as a weapon or escape aid). The use of such force as is reasonably necessary to conduct these searches, screening procedures or strip searches is already permitted, as is the seizure of these items.18

1.31 Moreover, searches of property and premises by the Department and Serco can also be conducted under a common law duty of care to maintain the safety and wellbeing of detainees and others in immigration detention facilities. These

16 HRLC, Committee Inquiry into the Migration Amendment (Prohibiting Items in Immigration Detention

Facilities Bill) 2020: Response to Department of Home Affairs and Serco evidence,

https://static1.squarespace.com/static/580025f66b8f5b2dabbe4291/t/5f2a1d6db26601170a608eac/159 6595568626/Prohibited+Items+Bill+-+Response+to+Department+and+Serco+evidence.pdf (accessed 5 August 2020).

17 AHRC, Submission 26.

18 Law Council of Australia, Submission 64, p. 5.

54

common law powers were acknowledged by the Department in the following evidence provided to the Committee:

Currently in relation to common areas in other parts of the detention centre, any search and seizure powers are really based on our common law responsibilities as the occupier and owner and our duty of care.19

1.32 These powers under the common law duty of care are regularly being exercised. As submitted by the Refugee Council:

we know that people in detention and their rooms are being frequently and extensively searched at different hours of the day…We also know that detention visitors are also routinely searched and also undergo drug tests.20

1.33 The Department’s Detention Services Manual also acknowledges various police powers under Commonwealth, state, and territory laws prohibiting criminal activity, including in immigration detention facilities. Many expert submitters and witnesses to this inquiry have argued that suspected criminal activity is best and most appropriately dealt with by police, as they have appropriate training, oversight, accountability, and legal limitations such as reasonable suspicion and search warrant procedures. As submitted by Human Rights Watch:

While it is appropriate for police to conduct searches in immigration detention facilities, there are insufficient safeguards and oversight mechanisms for Australian Border Force officers and private security contractors to have those powers.

Proposed powers 1.34 As summarised by the Government, the Bill:

Amends the Migration Act 1958 to: enable the minister to determine, by legislative instrument, prohibited things in relation to immigration detention facilities and detainees; enable authorised officers and assistants to search Commonwealth immigration detention facilities without a warrant; strengthen the search and seizure and screening powers of authorised officers; and enable the minister to issue binding written directions to authorised officers in relation to the exercise of their seizure powers.21

1.35 Many expert submitters and witnesses to this inquiry have raised concerns regarding the low bars set for search and seizure powers provided for by the Bill. As submitted by the UNHCR, the Bill:

19 Ms Pip de Veau, Group Manager and General Counsel, Legal Group, Department of Home

Affairs, Committee Hansard, p. 24.

20 Refugee Council, Submission 27, p. 8.

21 Parliament of Australia, Migration Amendment (Prohibiting Items in Immigration Detention Facilities)

Bill 2020, https://www.aph.gov.au/Parliamentary_Business/Bills_Legislation/Bills_Search_Results/ Result?bId=r6559 (accessed 5 August 2020).

55

includes a new statutory power to search facilities operated by or on behalf of the Commonwealth, in order to enforce both the existing and proposed prohibitions. Such a search could include accommodation areas, administrative areas, common areas, detainees’ rooms, detainees’ personal effects, medical examination areas and storage areas. Officers could also make use of detector dogs to conduct searches. Notably, a search may be conducted of a facility whether or not the authorised officer has any suspicion that there is a prohibited thing, a weapon or escape aid at the facility.22

1.36 Not only are these powers broad, they are also excessive, and without limitation. As submitted by the HRLC:

There is no guidance in the Bill regarding how these decisions are to be made or limitations on when authorised officers should use their new powers. This means that Home Affairs officers, ABF officers, Serco staff and detention health services staff will be able to search for and seize prohibited things without any limitations on when they do so … It is unreasonable and unsafe to give authorised officers - which includes staff of private contractors such as Serco who operate immigration detention centres - these excessively broad and unchecked powers.23

1.37 Furthermore, these excessively broad and unchecked powers exceed those provided to police. As submitted by the National Justice Project, which represented the applicant in ARJ17 v Minister for Immigration & Border Protection:

Granting government employees and contractors the power to strip search such individuals without having to show any reason to justify the search invites abuses of power and will cause unnecessary distress to individuals subjected to these searched. These powers are significantly broader than those granted to police and prison officers, who have higher levels of training and accountability.24

1.38 There are also fears held for how these arbitrary and unfettered powers will affect vulnerable communities in immigration detention. As submitted by the UNHCR:

Heavily securitized detention environments coupled with enhanced search and seizure powers, in particular those involving strip searches and the use of detector dogs are likely to have significantly adverse consequences for such psychologically vulnerable persons in detention.25

1.39 The Bill provides for blanket bans on items such as mobile phones in all immigration detention centres, including APODS, and anywhere else a detainee is held (e.g. a hospital). A blanket ban on mobile phones will have

22 UNHCR, Submission 40, p. 5.

23 HRLC, Submission 43, p. 3.

24 National Justice Project, Submission 25, p. 2

25 UNHCR, Submission 40, p. 9

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significantly adverse consequences for people in immigration detention, particularly those who are psychologically vulnerable. In a written response to Department and Serco evidence provided to the committee, the HRLC noted:

The Government’s previous actions suggest blanket bans of mobile phones will almost certainly be imposed on groups of people … the legislation and explanatory memorandum specifically state that mobile phones may be a prohibited item.26

1.40 This has been confirmed by the Acting Minister for Immigration, the Hon Mr Tudge MP, who said in his second reading speech for the Bill:

Mobile phones and internet-capable devices present an unacceptable risk … we are proposing to allow the minister to direct officers to seize mobile phones from certain categories of people, while providing officers with the

discretion to search for and seize mobile phones in other circumstances.27

1.41 The Government has been working to legislate prohibiting all persons held in immigration detention from having mobile phones or SIM cards since the full court, in ARJ17 v Minister for Immigration & Border Protection, found the Department’s policy to implement such a blanket ban in its Detention Services Manual was, under current legislation, legally invalid. The Bill, as it stands, would allow the Minister to legally reintroduce a blanket ban on mobile phones. And on almost any other item because, as submitted by the Commission:

the proposed provisions set a relatively low threshold for determining prohibited items, in that the Minister only need be satisfied that the thing ‘might’ pose a risk to safety or security. The Minister need not be satisfied that the thing is likely to present a risk, let alone that the thing is likely to present a risk in any particular circumstances that relate to a detention facility or group of people in detention.28

1.42 As noted by the HRLC, items such as mobile phones are used by most people held in detention for entirely ordinary and legitimate purposes. If a blanket ban were to be implemented on this entirely ordinary and legitimate item, then it stands to reason that blanket bans could also be implemented against any other ordinary and legitimate item. As submitted by the HRLC:

26 HRLC, Committee Inquiry into the Migration Amendment (Prohibiting Items in Immigration Detention

Facilities Bill) 2020: Response to Department of Home Affairs and Serco evidence,

https://static1.squarespace.com/static/580025f66b8f5b2dabbe4291/t/5f2a1d6db26601170a608eac/159 6595568626/Prohibited+Items+Bill+-+Response+to+Department+and+Serco+evidence.pdf (accessed 5 August 2020).

27 The Hon Alan Tudge MP, Acting Minister for Immigration, Citizenship, Migrant Services and

Multicultural Affairs, House of Representatives Hansard, 14 May 2020, p. 3442.

28 AHRC, Submission 26, p. 16.

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In addition to items such as mobile phones, this could extend to innocuous, everyday objects like pens and paper, if the Minister wished to control peaceful demonstrations in detention.29

1.43 This was echoed by the Commission in their submission, which warned:

In practice, there is an almost limitless number of things that might be a risk to health, safety, security or order.30

1.44 Blanket bans are neither a reasonable nor proportionate response to any risk that might exist regarding an item, as a whole community is punished for isolated or individual risks. As submitted by the Commission:

the proposed power for the Minister to declare items prohibited in immigration detention facilities may lead to restrictions on the possession of items in circumstances where they do not present a significant risk to safety and security in all cases … Serious problems involving mobile phone use appear to be exceptional rather than commonplace, and so any response to those problems should be proportionate to the nature and prevalence of these problems, especially given the significant negative impact of removing an individual’s mobile phone.31

1.45 Regarding the coercive search and seizure powers provided for in the Bill, the Law Council submitted:

[these] powers represent a significant incursion on individual rights and freedoms. This is also reflected in the need for police to seek a search warrant based on a ‘reasonable suspicion’ threshold.32

Powers unjustified 1.46 Not only are the powers provided by the Bill unnecessary: they are unjustified.

1.47 Numerous expert submitters to this inquiry have argued that the powers provided by the Bill are unjustified, and premised on assertions made without any evidence to back them - despite evidence having been requested by expert witnesses for the inquiry into the 2017 Bill of the same name tabled in the previous parliament.

1.48 Having raised these questions at the inquiry into the 2017 Bill, the Law council of Australia again raised the following questions and concerns at the public hearing for the Bill:

We're here, two years later, and there is no more data than we had in 2018 ... Firstly, where is the data to show the prevalence of the problem? Secondly, where is the data to show that existing law enforcement agencies cannot address these matters? It's quite extraordinary that, after three

29 HRLC, Submission 43, p. 2.

30 AHRC, Submission 26, p. 17.

31 AHRC, Submission 26, p. 17.

32 Law Council of Australia, Submission 64, p. 15.

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years, the department has not provided any data to this committee, to the parliament, or to bodies such as ours.33

1.49 Subsequent to the hearing and in response to evidence provided by the Department and Serco, the HLRC wrote:

The Department [while giving evidence to the Committee] did not elaborate on whether or how these common law powers are insufficient … The Government has not explained how working with police is difficult or unsuccessful.

1.50 This concern was echoed by many other expert submitters and witnesses, including the Andrew and Renata Kaldor Centre for International Refugee Law (the Kaldor Centre). It submitted:

The Explanatory Memorandum … does not provide any evidence of specific risks that cannot be managed under existing arrangements … [and] a number of the generalised statements about the risks in detention do not align with publicly available evidence.34

1.51 Concerns have not only been raised about the legitimacy and necessity of provisions within the Bill, but also the effectiveness of them. In their submission to this inquiry, the Refugee Council cited a 2019 report by the WA Office of the Inspector of Custodial Services on the use of strip searches in Western Australian prisons. The report found the use of strip searches to be ineffective and harmful.

1.52 In that report, the Inspector of the Custodial Services found it was:

naïve to think [strip searching] ‘works’ … There was no relationship between the volume of strip searches and the number of positive drug tests of prisoners. Nor was there any increase in contraband finds, using other processes, when strip searching stopped at certain facilities. These findings are consistent with research in other countries.

1.53 According to this report, and the national and international data that informed it, strip searching is not only harmful: it is ineffective, and not intelligence-led.

Lack of oversight 1.54 Many expert submitters and witnesses to this inquiry have raised concerns regarding the lack of oversight and accountability provided for in the Bill. According to numerous submissions, oversight and accountability is lacking at

all levels of decision-making.

1.55 The Kaldor Centre submitted:

Parliamentary oversight of these proposed powers is inadequate. While a legislative instrument declaring one or more items to be ‘prohibited things’

33 Mr David Prince, Member, Migration Law Committee, Law Council of Australia,

Committee Hansard, 3 July 2020, p. 3.

34 Kaldor Centre for International refugee Law, Submission 23, p. 2.

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is an instrument disallowable by the Senate, the efficacy of this accountability mechanism is limited by the fact that the Senate can only disallow the instrument in full … Ministerial directions that prescribe how search and seizure powers must actually be administered in practice are not disallowable.35

1.56 Regarding the lack of operational oversight, which could lead to abuses of power, the Refugee Council submitted:

there are no minimum statutory standards or proper legal framework for standards in immigration detention, these provisions create even more unchecked power in detention facilities. We know that even now holding the officers accountable is extremely challenging. We have been told, repeatedly, that people in detention and detention visitors find the complaint mechanism ineffective. Creating more unaccountable power can lead to both abuse of power and less accountability.36

1.57 There is also no accountability over how powers are delegated by authorised officers to “assistants”. As submitted by the Law Council:

The Bill provides no parameters for who the assistants can be; how they are appointed or for how long; what training they receive; and what background checks are carried out … such a lackadaisical approach … could leave the government open to litigation.37

1.58 This lack of oversight can lead to other perverse outcomes, such as policies and/or practices that discriminate against particular categories of people being held in immigration detention. As submitted by the Law Council:

the provisions as they are currently drafted may operate to enforce prohibitions differently for different cohorts on an arbitrary or even discriminatory basis … [because] the Minister has a broad discretionary power to decide how to define a class of persons.38

Mobile phones 1.59 Mobile devices which are internet, social media, and video-conference capable provide vital connectivity for people being held in detention. This contributes to the self-empowerment and mental health of individuals, and good order of

immigration detention facilities. As submitted by the Commission:

most of the people interviewed … during inspections report that they rely on their mobile phone (mostly smartphones) as their primary method of communication with family, friends and legal representatives.39

35 Kaldor Centre for International Refugee Law, Submission 23, p. 4.

36 Refugee Council of Australia, Submission 27, p. 4.

37 Law Council of Australia, Submission 64, p. 29.

38 Law Council of Australia, Submission 64, p. 26.

39 AHRC, Submission 26, p. 22.

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1.60 Without mobile phones, as submitted by the HRLC, people held in immigration detention will have:

no conveniently accessible means of video calling their children, keeping up with the news, or staving off boredom with movies, novels or games of their choice or in their own language.40

1.61 The Government has argued that if a blanket ban prohibiting mobile phones is implemented, alternative facilities and technologies will be provided for detainees. However, as argued by many expert submitters and witnesses to this inquiry, these alternatives will not provide equivalent functionality. As submitted by the HRLC:

alternative communication methods available in detention centres are insufficient and incomparable to mobile phones.41

1.62 This concern was shared by the Commission, which submitted:

While all immigration detention facilities provide access to computers and landline phones … lack of privacy; slow internet connection on desktop computers; and poor maintenance of communication facilities … Most computers in immigration detention facilities do not have a video function … [and while] landline phones are available in most common areas (including in compounds) … they offer limited privacy … [and] the cost of calls … [are] significantly higher.42

Social media 1.63 Social media provides people held in immigration detention the capacity to flexibly communicate with friends, families, support networks, and broader communities.

1.64 An argument frequently made in calling for powers to prohibit mobile phones in immigration detention facilities, perhaps most recently by Minister Tudge in his second reading speech for the Bill, is that mobile phones have been used by detainees:

1.65 to intimidate and threaten the safety and welfare of staff. Staff have been filmed and photographed by detainees, with this material then transmitted to associates outside of detention facilities via social media. This is causing significant fear and stress for staff and their families.

1.66 However, as submitted by the Law Council:

under the Criminal Code Act 1995 (Cth), it is already an offence, punishable by up to three years imprisonment, for a person to use a

40 HRLC, Submission 43, p. 7.

41 HRLC, Submission 43, p. 6.

42 AHRC, Submission 26, p. 23.

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carriage service in a way that reasonable persons would regard as being, in all the circumstances, menacing, harassing or offensive.43

Access to legal representation 1.67 Another important and principal use of mobile phones by people held in immigration detention is access to legal representation. As submitted by the ASRC:

in recent years all physical visits to detention centres, including professional visits, have become much more cumbersome and difficult to obtain approval for, and to arrange. In this context of isolating detainees from visitors, there is now much greater reliance by lawyers and others on contacting detainees’ via their personal phones.44

1.68 This concern was shared by the Law Council in their submission, which said the Bill’s:

explicit focus on mobile phones, has the potential to make access to legal representation and support significantly more difficult, and will unjustifiably exacerbate what is already a challenging process that must operate within strict procedural time limitations … mobile phones … are critical to ensuring that the detainee is aware of their right to legal advice in the first place - a right which is not made sufficiently clear.45

1.69 Concerns regarding the importance of timely legal representation were also raised by the Refugee Council, which submitted:

There have been instances when mobile phones helped alert the lawyers to an imminent removal and prevented potential refoulement.46

Access to families and support networks 1.70 Another common and crucial use of mobile phones by people held in immigration detention is access to families and support networks. This is especially critical now, while visitation to immigration detentions facilities has

been banned due to COVID-19 risks. As submitted by the ASRC, detainees:

can use audio or video calls, the latter being especially important to those detainees with young children. They can talk to their families and others as often as they like and without having to queue up or take their turn with the pressure of others waiting to use the phone within earshot. Those with relatives overseas, can make international calls at low cost. Detention centre landlines, even if there were enough, are no substitute for the level of access, privacy, low cost and quality of communication and relationships that detainees are able to maintain when they have access to their personal mobile phones.

43 Law Council of Australia, Submission 64, p. 20.

44 ASRC, Submission 135, p. 5.

45 Law Council of Australia, Submission 64, p. 20.

46 Refugee Council of Australia, Submission 27, p. 5.

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Good order in immigration detention 1.71 Although government, the Department, and Serco have all argued that the powers and provisions within the Bill will improve the “safety and security of the immigration detention environment”, it appears little consideration or

acknowledgment has been given, particularly regarding mobile phones, to the potential impacts to good order that can result from the Bill. This has, however, been recognised by many expert submitters and witnesses to this inquiry. As submitted by the Refugee Council:

[We] and many other organisations have raised concerns about the lack of meaningful programs and activities in immigration detention facilities. The AHRC raised alarm that the boredom, frustration and lack of engagement that arise from lack of meaningful programs and activities can contribute to the tensions within the facilities.47

1.72 Expanding on this concern, the ASRC submitted:

Some detainees use their phones for expressive and creative purposes: making and recording music and writing; creative writing, testimonial writing, all expressions of human creativity and tools to help counter the boredom and hopelessness of their situations. Unlike prisoners who are provided with a wide array of educational programs, vocational training options, work options and rehabilitation programs, immigration detainees face mindless boredom, day in and out. Phones with internet connectivity are also vital to occupying and entertaining detainees, who typically spend many hours a day with nothing to do, making the time lag and it even more difficult for them to remain motivated, well and hopeful.48

Accountability and freedom of political expression 1.73 The banning of mobile phones for people being held in immigration detention will also stifle the ability of detainees to engage in political expression and legitimate protest. The government, and Liberal state governments around the

country, have long standing and well documented opposition to political protest. Liberal and Liberal National Party (LNP) governments have introduced anti-protest laws federally, and in Western Australia, Queensland, New South Wales, and Tasmania.

1.74 As submitted by the Kaldor Centre, mobile phones have given people in detention an important voice in public debate, but the Bill would:

have the effect of curtailing the ability of immigration detainees to participate in protest activities. It would also prevent detainees from engaging in public discourse in a variety of other ways … [that] would impose a direct burden on detainees’ ability to engage in political communication.49

47 Refugee Council of Australia, Submission 27, p. 5.

48 ASRC, Submission 135, p. 10.

49 Kaldor Centre for International Refugee Law, Submission 23, p. 10.

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1.75 Mobile phones are mostly used by detainees for entirely ordinary and legitimate purposes. This includes raising public awareness of their circumstances, treatment, and conditions. The provisions within the Bill, as submitted by the Law Council, may:

prevent the release of information about immigration detention facilities even where it would be in the public interest for such information to come to light. The lack of transparency or independent oversight over immigration detention facilities has been a consistent concern over many years in Australia.50

1.76 This concern is particularly timely, given recent events regarding the use of police and correctional officer force both in Australia and abroad. As submitted by the Kaldor Centre:

In contrast to the low incidence of mobile phones being used in a harmful manner, there are numerous examples of mobile phones and internet capable devices being used to document the treatment and conditions of detainees in immigration detention in a way that improves public visibility and, by extension, accountability … [including:] attempts to deport the Biloela family; the alleged use of excessive force in immigration detention by Serco employees; the management of COVID-19 risks in immigration detention.51

Human/legal rights 1.77 As recognised by many expert submitters and witnesses to this inquiry, provisions within the Bill will engage numerous human rights.

1.78 In its submission, the Commission identified the following human rights conventions as being engaged by the Bill:

 the International Covenant on Civil and Political Rights (ICCPR);  the Convention Against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (CAT);  the International Covenant on Economic, Social and Cultural Rights

(ICESCR);  Convention on the Rights of the Child (CRC).52

1.79 In its submission, the Kaldor Centre suggested:

A widespread ban on mobile phones in immigration detention may contravene a number of international law obligations. It may also infringe the constitutionally protected implied freedom of political communication, and would be likely to face challenge on this basis.53

50 Law Council of Australia, Submission 64, p. 21.

51 Kaldor Centre for International Refugee Law, Submission 23, pp. 6-7.

52 AHRC, Submission 26.

53 Kaldor Centre for International Refugee Law, Submission 23, p. 2.

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1.80 The Kaldor Centre also warned that:

there are strong arguments that restricting the capacity for such communications would be unconstitutional.54

Timing of bill 1.81 As indicated earlier in this dissenting report, there have also been concerns raised by expert submitters and witnesses regarding the timing of the Bill: that the Bill was introduced during the COVID-19 pandemic, while all personal

visits to immigration detention facilities, including by legal representatives, have been banned.

1.82 Physically, as submitted by the Kaldor Centre, people held in immigration detention will be adversely affected because:

The measures proposed in the Bill would, by contrast, serve to exacerbate the already high risk of COVID-19 in Australia’s immigration detention facilities, by forcing large numbers of detainees to use a small number of shared phone and computer facilities. As the Visa Cancellations Working Group has noted in its submission to this inquiry, broadening search powers during this time is also likely to lead to an increase in physical contact between staff and detainees that does not adhere to necessary social distancing protocols.55

1.83 Mentally, as submitted by the ASRC, people held in immigration detention will be adversely affected because:

There has never been a time when access to telephones and other internet-capable devices has proven to be more important than during the community lockdowns necessitated by this pandemic. For those held in immigration detention, who are in constant lockdown, telephones and access to the internet are a ’life-line’, for some, literally so.56

Conclusion 1.84 The amendments proposed by the Bill are unjustified and unnecessary. They are punitive, disproportionate, and incompatible with Australia's international human rights obligations.

1.85 The Bill is a deliberate attempt to prevent or limit contact with the outside world for people in immigration detention. It is also a deliberate attempt to silence legitimate dissent and political expression.

1.86 The Bill is irredeemable and cannot be fixed by amendment.

54 Kaldor Centre for International Refugee Law, Submission 23, p. 7.

55 Kaldor Centre for International Refugee Law, Submission 23, p. 9.

56 ASRC, Submission 135, p. 4.

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Recommendation 1.87 The Australian Greens recommend that the bill be opposed by the Senate.

Senator Nick McKim Greens Senator for Tasmania

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Appendix 1 Public hearing

Friday, 3 July 2020 Parliament House, Canberra ACT Committee members in attendance: Senators Stoker, Carr, Henderson and McKim. CAMPBELL, Ms Leonie, Deputy Director of Policy, Law Council of Australia COTTERILL, Ms Emma, Senior Assistant Ombudsman, Office of the Commonwealth Ombudsman DE VEAU, Ms Pip, Group Manager and General Counsel, Legal Group, Department of Home Affairs DICKINSON, Ms Hannah, Chair, Visa Cancellations Working Group KEFFORD, Mr Andrew PSM, Acting Deputy Secretary, Immigration and Settlement Services, Department of Home Affairs MANNE, Mr David, Executive Director, Principal Solicitor and Registered Migration Agent, Refugee Legal MANTHORPE, Mr Michael PSM, Commonwealth Ombudsman, Office of the Commonwealth Ombudsman MAYBERY, Ms Tessa, Solicitor and Migration Agent, Refugee Legal NANDAGOPAL, Ms Prabha, Senior Lawyer, Australian Human Rights Commission OKHOVAT, Ms Sahar, Senior Policy Officer, Refugee Council of Australia PERKINS, Ms Leah, Member, Migration Law Committee, Law Council of Australia PFITZNER, Mr Paul, Acting Deputy Ombudsman, Office of the Commonwealth Ombudsman PILLAI, Dr Sangeetha, Senior Research Associate, Kaldor Centre for International Refugee Law POWER, Mr Paul, Chief Executive Officer, Refugee Council of Australia PRINCE, Mr David, Member, Migration Law Committee, Law Council of Australia REES, Mrs Claire, Acting Group Manager, Immigration Detention, Australian Border Force, Department of Home Affairs SANTOW, Mr Edward, Human Rights Commissioner, Australian Human Rights Commission VERMA, Ms Sanmati, Deputy Chair, Visa Cancellations Working Group WILLARD, Mr Michael, First Assistant Secretary, Immigration and Community Protection Policy Division, Department of Home Affairs WRIGHT, Ms Pauline, President, Law Council of Australia WRIGLEY, Ms Katie, Senior Solicitor Immigration Law, Legal Aid NSW

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Appendix 2

Submissions and additional information

Submissions 1 Amnesty International Australia 2 Mr Daniel Taylor 3 The Bayside Refugee Advocacy and Support Association 4 Rural Australians for Refugees Queanbeyan 5 Australian Medical Association 6 Mrs Carolyn Hughes 7 Mr Jonathan Tucker 8 Mrs Barbara Forehan 9 Mrs Shira Sebban 10 Australian Lawyers Alliance 11 Ms Sasha Pearson 12 Centre for Asylum Seekers, Refugees and Detainees 13 Mr Alain Rondot 14 Doctors for Refugees (Australia) 15 Mr Philip Clarke 16 Ms Chloe Zentilin 17 Federation of Ethnic Communities' Councils of Australia 18 Blue Mountains Refugee Support Group Inc 19 Brigidine Asylum Seeker Project 20 Hunter Asylum Seeker Advocacy 21 Combined Refugee Action Group 22 Serco Asia Pacific 23 Kaldor Centre

 23.1 Supplementary to submission 23

24 Refugee Legal  24.1 Supplementary to submission 24

25 National Justice Project 26 Australian Human Rights Commission 27 Refugee Council of Australia 28 Department of Justice Tasmania 29 Public Interest Advocacy Centre 30 National Council of Churches in Australia (NCCA) 31 Ballina Region for Refugees 32 Humanists Victoria 33 Liberty Victoria 34 Ms Jenny Leahy 35 Prof Catherine Greenhill

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36 Rural Australians for Refugees 37 Australian Association of Social Workers 38 NSW Council for Civil Liberties 39 Armidale Rural Australians for Refugees 40 United Nations High Commissioner for Refugees 41 Aireys Inlet Rural Australians for Refugees 42 Ms Christine Morris 43 Human Rights Law Centre 44 Media, Entertainment & Arts Alliance 45 Legal Aid New South Wales 46 The Humanitarian Group 47 Refugee Advice & Casework Service 48 Northsiders With Refugees 49 Dr Michelle Peterie 50 Independent Doctors Network (Previously Medevac Doctors) 51 Maurice Blackburn Lawyers 52 Stewart Administrative & Migration Lawyers 53 Victorian Gay and Lesbian Rights Lobby 54 The Royal Australian and New Zealand College of Psychiatrists 55 Immigration Advice and Rights Centre 56 Refugee Action Collective Victoria 57 Human Rights Watch 58 Royal Australian College of General Practitioners 59 Refugee Advocacy Network 60 Grandmothers for Refugees 61 Confidential 62 Confidential 63 Confidential 64 Law Council of Australia 65 Canberra Refugee Action Committee 66 Cairns for Refugees 67 Ms Helen Esmond 68 Office of the Commonwealth Ombudsman 69 Department of Home Affairs 70 Refugee and Asylum Seeker On-Arrival Support Group 71 Ms Jean John 72 Mr Roy Hives 73 Mr George Nicholas Armitage 74 Ms Pauline Brown 75 Major Colin Elkington 76 Mr Robin Rothfield 77 Ms Dorothy Mcdonald 78 Ms Kirsty Tanner

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79 Ms Rosemary Thompson 80 Ms Carol Collin 81 Ms Helen McKinnon 82 Ms Helen Periera 83 Mr Kobi Lockwood 84 Ms Lynne Pantaur 85 Ms Lesley Wilkins 86 Ms Janet Field 87 Ms Danielle Stafford 88 Mr Max Bato 89 Visa Cancellations Working Group

 89.1 Supplementary to submission 89

90 Ms Peta Price 91 Mr Max Bato 92 Ms Marion Davie 93 Ms Annette Culley 94 Mrs Wendy Lyons 95 Ms Anna Buch 96 Ms Carol Bristow 97 Ms Helen Saville 98 Ms Judy Trompf 99 Ms Sydney Braunfeld 100 Ms Barb Birkett 101 Ms Barbara Bodlander 102 Ms Anne Hastings 103 Mr Ian Harvey 104 Supporting Asylum Seekers Sydney 105 Mrs Dawn Barrington 106 Ms Cathy Robertson 107 Ms Anne Jones 108 Mr Philip Johnson 109 Ms Mary Cotter 110 Ms Keila Waksvik 111 Ms Jacinta O'Leary 112 Ms Sarah St Vincent Welch 113 Ms Christine McNeil 114 Ms Janet Hutchison 115 Ms Margaret Pickup 116 Ms Maggie Cowling 117 Miss Jemma Cotter 118 Ms Serena Horton 119 Dr Kym Watling 120 Ms Bridey Lea

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121 Ms Roberta Waterman 122 Ms Angelika Treichler 123 Ms Elizabeth Corbett 124 Name Withheld 125 Name Withheld 126 Dr Nicole Erlich 127 Ms Liz Heritage 128 Mr Nauroze Anees 129 Dr Lindsay Quennell and Mrs Faye Quennell 130 Ms Maureen Harrison and Mr Les Harrison 131 Human Rights For All 132 Ms Kathryn Kennedy 133 Name Withheld 134 Ms Jane Salmon 135 Asylum Seeker Resource Centre

Additional Information

Additional Information 1 Report into the use of force in immigration detention 2019 provided by Australian Human Rights Commission (received 16 July 2020)

Answer to Question on Notice 1 Department of Home Affairs, answers to questions on notice, 3 July 2020 (received 17 July 2020) 2 Office of the Commonwealth Ombudsman, answers to questions on notice, 3

July 2020 (received 20 July 2020)

Form Letters 1 Form Letter A - 13 received