1.1
The Australian Labor Party (Labor Party) dissents from the majority
report of the Legal and Constitutional Affairs Legislation Committee (the
committee) inquiry into the provisions of the Migration Amendment (Prohibiting
Items in Immigration Detention Facilities) Bill 2017 (the bill).
1.2
The Labor Party recognises that the risks associated with the changing profile
of detainees in immigration detention may require new management policies.
However, the government has not demonstrated any attempt to address these risks
in less restrictive ways than those proposed in the bill. The government had
the opportunity to have an open discussion about the challenges and risks to
staff, visitors and detainees in immigration detention facilities but has
failed to do so.
1.3
Labor senators are strongly of the view that items like narcotic drugs,
child exploitation material or weapons or other items that are illegal should
not now, nor ever have been permitted within immigration detention centres on
reviewing the evidence provided to the committee. The government however has
not made the case for the necessity of some of the other proposed amendments.
1.4
Many submitters expressed valid concerns that the measures in the bill were
disproportionate to the stated risks.[1]
In particular, the bill enables blanket prohibitions on all detainees
regardless of their needs, vulnerabilities, or risk profile. This point was
made by Rural Australian for Refugees:
While groups such as child sex offenders and members of
outlaw motorcycle gangs are currently detained in an increasing number and ABF
and detention service providers need to implement measures to manage their
needs and risks, there is almost no reference to the fact that the Australian
immigration detention facilities still accommodate a large number of people
with much lower risk ratings. These groups include those who have sought
asylum, those who did not comply with their visa conditions (for example, visa
overstayers) and those had their visa cancelled for crimes such as traffic
offences. This Bill fails to protect the rights of these groups and requires
them to face the same restrictive measures as those who have committed violent
crimes and are assessed to be of high risk to self or others.[2]
The visitors to detention centres who are our members report
that they are often given contradictory information about this issue even
during one visit, depending on the staff they speak to.[3]
1.5
Furthermore, the bill would allow blanket prohibitions of items that can
be used for positive purposes as well as negative ones. As put by the
Australian Human Rights Commission (AHRC):
...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.[4]
1.6
These prohibitions would be effected by proposed section 251A, which provides
for the circumstances in which the minister may prohibit an item. This
threshold is too low. As argued by the Law Council of Australia (Law Council):
...any number of things could fall within this broad
definition, particularly because the provision does not require any standard by
which the Minister is required to consider whether something might be a risk,
nor is there any guidance on what would constitute a risk to the 'order of the
facility'. There is also no guidance on what 'order of the facility' means in
this context.[5]
1.7
Further, the current bill would allow items to be prohibited if the
minister is satisfied that they 'might pose a risk' [emphasis added] to
immigration detention facilities. The AHRC noted that:
[t]he 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. The
Minister’s power is also not conditioned
on any nexus between prohibiting the item in question and addressing the risk
the Minister has identified.[6]
1.8
Rural Australians for Refugees expressed valid concerns that 'broadening
the list of prohibited items for visitors will result in more frequent and
unexpected changes, more inconsistent practice and greater challenges for
visitors to access detention facilities'.[7]
Indeed, submitters indicated that previous prohibitions have been applied
inconsistently,[8]
contrary to the testimony of the Department of Immigration and Border
Protection. This risks reducing confidence in the immigration detention
network.
1.9
The bill would not require the minister to justify prohibitions, and the
minister's determinations would not be subject to administrative review.[9]
The proposed legislative instruments are not disallowable by the Senate.[10]
1.10
Importantly, the Labor Party’s concerns on this subject do not assume or
imply bad faith on the part of any minister making ministerial determinations
under the bill. Rather, as the Australian Lawyers for Human Rights (ALHR)
submitted, '[l]egislation should always represent an appropriate and
proportionate response to the harms being dealt with by the legislation...'[11]
1.11
In light of its concerns, Legal Aid New South Wales suggested that
'"[p]rohibited thing" should be defined in the statute itself, rather
than via legislative instrument, to enable proper Parliamentary scrutiny of the
scope of the definition.'[12]
Additionally, the first recommendation of the Law Council was that '[t]he
definition of 'prohibited thing' should be narrowly confined to for example
items which justifiably may cause a risk to the health or safety of a person in
IDFs (such as weapons or narcotics).'[13]
1.12
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, however the government has failed to make a
case for why other items should be prohibited or why the risk cannot be managed
on a case by case basis as suggested by Amnesty International 'any purported
risk should be assessed on an individual case- by-case basis against defined
criteria and thresholds...'[14]
Recommendation 1
1.13
Labor Party senators recommend that the bill be amended in accordance
with the first recommendation of the Law Council of Australia to narrowly
confine the definition of 'prohibited thing', and in accordance with the Legal
Aid New South Wales proposal that 'prohibited thing' be defined in statute to
enable appropriate parliamentary oversight.
1.14
Although the bill and Explanatory Memorandum countenance a prohibition
on mobile phones, such a ban was not supported by the evidence received by the
committee and instead suggested such a ban would cause harm and create barriers
to detainees having access to justice. In fact, the evidence highlights the
importance of mobile phones in allowing detainees to communicate with their
legal representatives and external support networks.
1.15
Ms Fiona McLeod SC of the Law Council explained the significance of this
issue, arguing that '[m]obile phones play a significant role in ensuring
detainees can access timely legal advice, which is of course a fundamental
underpinning of the rule of law...[15]
Both the Kaldor Centre for International Refugee Law and the Refugee Council of
Australia (Refugee Council) highlighted the tight legal timeframes that often
apply to detainees' cases, and emphasised that mobile phones can be critical to
allow timely and private access to legal services.[16]
1.16
The Refugee Advice and Casework Service (RACS) argued that the bill does
not appropriately weigh the benefits of mobile phones against their possible
negative uses:
...the Bill fails to balance concerns over particular uses of
mobile phones by a small number of people in immigration detention with the
overwhelming number of safe, legitimate and important uses for them. The
rationale for the Bill also underestimates the difficulties currently faced by
people in detention in accessing legal services and the importance of mobile
phones in this context.
1.17
These concerns take on particular significance when considering the
adequacy of alternate communication facilities, the lived experience of legal representatives
who have experienced barriers in speaking with their clients in a timely manner
and the failure of the government to make a case that they have taken appropriate
steps to ensure detainees have appropriate access to phones and other
communication channels. The Refugee Council stated that it is not convinced
that:
...the mere fact of installing additional telephone landlines
provides people with appropriate communication channels that are on par with
mobile phones. We believe this argument disregards many reports and documented
evidence presented to the Department about the challenges people face when
trying to use other communication channels.[17]
1.18
The Refugee Council, Legal Aid NSW and Refugee Legal highlighted lived
experience of lawyers who have experienced barriers in communicating with their
clients:
Lawyers who spoke to RCOA [Refugee Council of Australia] report
that it is extremely challenging to work within the tight deadline when their
clients are detained in remote detention facilities and do not have access to
mobile phones. Setting up time for an interview, often across different time
zones on limited landlines creates significant challenges for lawyers to submit
applications to important courts and tribunals. To assist someone with their
protection visa applications or their appeal against the cancellation of their
visas, lawyers need to speak to people about confidential and sensitive issues,
for example accounts of rape and torture. The public nature of landlines means
many people will be reluctant to disclose sensitive and personal information.
Similarly, talking about highly personal matters with family and loved ones in
an open setting where landline telephones are located is extremely difficult.[18]
In our experience, it is quicker, more straightforward and
more efficient to communicate with clients through their mobile telephone than
attempting to contact them through the general detention centre telephone
numbers. This is especially so when clients require telephone interpreters to
communicate with their representatives, which is not uncommon. The Telephone
Interpreter Service (TIS) works very quickly and easily when a client
has a mobile telephone. Calling with a TIS interpreter through the switchboard
is logistically very difficult and time consuming, and inhibits important
communication between a client and their representative.[19]
Telephone appointments in a private area generally require a
period of notice, eg 24 hours, which is not always possible with urgent
matters.[20]
Refugee Legal has had recent experience of trying to contact
a person detained in an Alternative Place of Detention (APOD), where we were
informed that the Serco staff had only one mobile for the facility so it could
not be given to the applicant. The formal request process for arranging a
telephone call was delayed, with the result that the person did not access
legal advice in the required time.[21]
1.19
Moreover, as RACS highlighted, '[t]he Explanatory Memorandum promises
that access to communication facilities will be maintained and enhanced but the
Bill itself contains no provisions to this effect.'[22]
1.20
The committee also heard evidence from Rural Australians for Refugees
about the increased risk factors of the detainee population competing for
access to a limited number of public phones:
The limited number of landline telephones results in
increased competition over their use and create heightened tensions. There are
usually queues forming directly behind a person speaking on the landline,
limiting the privacy and creating tension among both those on the phones and
those waiting. Those detained for character cancellation reasons will likely be
making more local calls to family, while those seeking asylum will often be
making international calls, hence cost and length of calls will be vastly
different.[23]
1.21
Given the importance of mobile phones to detainees to communicate with
their legal representatives and external support network the Labor Party supports
the Law Council recommendation that '[i]n the absence of evidence to suggest
necessity and proportionality, immigration detainees should not be prevented
from possessing or using electronic devices such as mobile phones.'[24]
The Labor Party also supports the AHRC recommendation that '[t]he Australian
Government should ensure that all people in immigration detention have adequate
opportunities to communicate with people outside detention.'[25]
Recommendation 2
1.22
Labor Party senators recommend that the bill be amended in accordance
with the second recommendation of the Law Council of Australia to ensure that
detainees are not prevented from possessing or using electronic devices such as
mobile phones unless there is evidence that their removal is both necessary
and proportionate, and in accordance with the third recommendation of the
Australian Human Rights Commission to ensure that all people in immigration
detention have adequate opportunities to communicate with people outside detention.
1.23
The Labor Party is also concerned that the current bill is not clear
regarding a prohibition on detainees having direct access to their medication.
As the ALHR submitted, it is troubling that 'if this Bill becomes law, detained
refugees could be arbitrarily deprived of their essential medication'.[26]
1.24
The government has not made the case for detainees being deprived of
their medication. This is a duty of care issue, and detainees should have the
opportunity to be involved in the management of their own health. In order to
ensure that the bill contains appropriate protections, the Labor Party endorses
the third recommendation of the Law Council:
The reference to 'medications or health care supplements' in
the note to subsection 251A(2) should be amended to ensure that medications
obtained under prescription or supplements recommended by a health practitioner
are not caught by the provision, and that it is only directed at narcotic or
restricted substances.[27]
Recommendation 3
1.25
Labor Party senators recommend that the bill be amended in accordance
with the third recommendation of the Law Council of Australia to ensure that
medications obtained under prescription, or supplements recommended by a health
practitioner, are not caught by the provision, and that the provision is
directed only at narcotic or restricted substances.
1.26
Labor Party senators recognise the need for increased search powers but
believe the current bill does not contain sufficient safeguards. As argued by
Refugee Legal:
The extension of the search powers proposed by the Bill lacks
adequate justification; fails to recognise the many different forms of
immigration detention and the circumstances of detainees; and has concerning
implications for the treatment of people in detention, including refugees and
asylum seekers with past experiences of torture and trauma.[28]
1.27
The Law Council highlighted the implications of enabling a search for
any prohibited item, rather than only for weapons and other similar things:
A power of search for dangerous weapons or means of escape is
one thing. To extend the power of search to anything which might be a risk to
the health, safety or security of person in the facility, or to the order of
the facility allows the Minister to declare virtually any kind of item
contraband subject to search. A pen or pencil and paper could be in that
category.[29]
1.28
Labor senators share this concern that the measure is not appropriately
targeted and support the fourth recommendation of the Law Council:
Paragraphs 252BA(1 )(d) and (e), which would allow for the
searches of detainees' personal effects and rooms without warrant, be amended
and limited to situations where there is a reasonable suspicion of contraband
in a detainee's possession.[30]
Recommendation 4
1.29
Labor Party senators recommend the bill be amended in accordance with
the fourth recommendation of the Law Council of Australia to limit searches of
detainees' personal effects and rooms to cases where there is reasonable
suspicion that contraband is in the detainee's possession.
1.30
Labor senators are very conscious that a strip search is intrusive and
is a significant imposition on the person being searched. Strip searches are
sometimes necessary to ensure that detainees and staff are kept safe, but it is
critical that the legislation contains adequate safeguards.
1.31
The Law Council highlighted that the bill would allow strip searches to
be conducted where there is reasonable suspicion that the detainee possesses a
'prohibited thing'. Labor Party senators share the Law Council's concern that,
given the breadth of items that may be determined 'prohibited things', the
current bill is too broad. Given this, Labor Party senators support amending
the bill in accordance with the fifth recommendation of the Law Council:
Subsection 252A, which would allow for the strip searches to
be conducted for prohibited things, be amended and expressly refer to the
principle that detainees not be searched unless there is a reasonable suspicion
that illegal substances or items are in their possession and that strip
searches only be conducted in exceptional circumstances.[31]
Recommendation 5
1.32
Labor Party senators recommend that the bill be amended in accordance with
the fifth recommendation of the Law Council of Australia to expressly refer to
the principle that detainees not be searched unless there is a reasonable
suspicion that illegal substances or items are in their possession, and that
strip searches only be conducted in exceptional circumstances.
1.33
Labor senators acknowledge that detector dogs can be a useful tool for
authorities to conduct reasonable searches, especially in the detection of
illegal narcotic drugs. However, the use of detector dogs must acknowledge the
particular vulnerabilities of people in immigration detention centres.
1.34
As expressed by Rural Australians for Refugees, '[f]or many people,
seeing dogs during these search processes can bring to mind memories of police
raids in countries of origin.'[32]
Further, the Law Council noted that 'there are relevant cultural sensitivities
in respect of the use of sniffer dogs that the Bill does not adequately
address...'[33]
1.35
In addition to the protections already in the bill, Labor Party senators
believe that detector dogs should only be used in a manner that respects these
sensitivities and that steps should be taken to avoid causing detainees to
suffer distress or trauma.
Recommendation 6
1.36
Labor Party senators recommend that the bill be amended to ensure that
detector dogs are able to be used in immigration detention and transit centres,
but are not permitted to be used on detainees.
Recommendation 7
1.37
Subject to the preceding recommendations, Labor Party senators recommend
that the bill be passed.
Senator
Louise Pratt
Deputy Chair
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